Japan's Prosecution Review Commission: On the Democratic Oversight of Decisions Not To Charge 3031193725, 9783031193729

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MIGRATION, PALGRAVE ADVANCES IN CRIMINOLOGY AND CRIMINAL JUSTICE IN ASIA DIASPORAS AND CITIZENSHIP

Japan’s Prosecution Review Commission On the Democratic Oversight of Decisions Not To Charge David T. Johnson

Palgrave Advances in Criminology and Criminal Justice in Asia

Series Editors Bill Hebenton, Criminology & Criminal Justice, University of Manchester, Manchester, UK Susyan Jou, School of Criminology, National Taipei University, Taipei, Taiwan Lennon Y. C. Chang, School of Social Sciences, Monash University, Melbourne, Australia

This bold and innovative series provides a much needed intellectual space for global scholars to showcase criminological scholarship in and on Asia. Reflecting upon the broad variety of methodological traditions in Asia, the series aims to create a greater multi-directional, cross-national understanding between Eastern and Western scholars and enhance the field of comparative criminology. The series welcomes contributions across all aspects of criminology and criminal justice as well as interdisciplinary studies in sociology, law, crime science and psychology, which cover the wider Asia region including China, Hong Kong, India, Japan, Korea, Macao, Malaysia, Pakistan, Singapore, Taiwan, Thailand and Vietnam.

David T. Johnson

Japan’s Prosecution Review Commission On the Democratic Oversight of Decisions Not To Charge

David T. Johnson University of Hawaii at Manoa Honolulu, HI, USA

Palgrave Advances in Criminology and Criminal Justice in Asia ISBN 978-3-031-19372-9 ISBN 978-3-031-19373-6 (eBook) https://doi.org/10.1007/978-3-031-19373-6 Revised and expanded version of “Kensatsu Shinsakai: Nihon no Keiji Shiho o Kaeru ka” [copyright David T. Johnson, Mari Hirayama, and Hiroshi Fukurai], published by Iwanami Shinsho in Tokyo, 2022. All rights reserved. © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover credit: © Steve Cavalier/Alamy Stock Photo This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

Japan’s Prosecution Review Commission is unique in the world. It was created as the result of compromise between Japanese and American officials during the postwar occupation. The main mission of this panel of 11 citizens is to review non-charge decisions made by professional prosecutors and to determine which cases should be reinvestigated or charged. PRCs are also authorized to provide prosecutors with general proposals and recommendations for improving their policies and practices. These are important tasks, for the prosecutor has more control over life, liberty, and reputation than other person. The PRC is less well-known than the lay judge system, which is another form of lay participation in Japanese criminal justice. But the PRC may be more significant because prosecutors are the key gatekeepers in Japanese criminal justice, and because the PRC can review non-charge decisions for all kinds of crime. The main aims of this book are to explain why PRCs are important, how they operate, and what their impacts are. When I started studying this subject a decade ago I believed what many observers claimed, that the PRC is an interesting but inconsequential ornament in Japanese

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criminal justice. But as the research progressed I came to understand the important functions that PRCs perform, and I also came to see the potential these panels have for improving the quality of criminal justice in Japan and other countries, where victims, deterrence, and democracy are not well served by prosecution practices that frequently fail to hold sex offenders, white-collar-criminals, and other lawbreakers accountable. This research shows that PRCs have several significant impacts. In most cases they ratify prosecutors’ non-charge decisions and thereby help to legitimate Japanese criminal justice. Some will criticize this as “conservative” because it reinforces the status quo, but law without legitimacy is raw power, and it is seldom popular or effective. PRCs also challenge and change prosecutors’ decisions. When a PRC kicks back a case with a recommendation to reinvestigate or charge, prosecutors change their non-charge decision to charge about one-quarter of the time. There is room for debate about whether this rate should be higher (or lower), but the evidence does not support claims that PRCs have little influence on prosecutors in Japan. PRCs also shape prosecutorial decision-making preemptively. This is hard to measure, but it is probably the most important PRC impact. It occurs when prosecutors operating in the shadow of the PRC decide to charge a case because they want to avoid PRC review and public criticism, and because they want to steer clear of the bureaucratic hassles that occur inside their organization when a case is kicked back to them for further review. All of these impacts—legitimation, kickbacks, and shadow effects— come from civilian influence on criminal prosecution. Through these influences, PRCs make criminal prosecution in Japan more democratic, but they also create risks of over-charging and wrongful conviction, which are discussed along with suggestions for reforms that might reduce them. The most hailed and hated PRC practice is “mandatory prosecution,” an authority acquired in 2009 when the PRC Law was reformed to enable a PRC to overrule prosecutors by forcibly filing charges if it decides twice in the same case that prosecution is appropriate. PRCs have not used this power as much as supporters of the reform hoped

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or as critics of the reform feared. There were only 10 cases of mandatory prosecution in the first 12 years, and most of the public and media attention directed at PRCs has focused on these cases. The highest profile case involved the mandatory prosecution of three former executives of the Tokyo Electric Power Company, for professional negligence leading to injuries and loss of life from the nuclear meltdown in Fukushima after the earthquake and tsunami of March 11, 2011. All three of those defendants were acquitted, as were most of the other people subject to mandatory prosecution. Some observers believe these not-guilty verdicts prove that prosecutors were right not to charge—and that PRCs are overdoing it. This is also the position taken by some Japanese prosecutors. But just because a case ends in acquittal does not mean the decision to charge was wrong. The TEPCO investigation and trial actually did considerable good, by revealing facts that were previously concealed and denied, and by clarifying important truths about the meltdown at Fukushima. The TEPCO indictments and other mandatory prosecutions also illustrate how difficult it is to hold offenders accountable in whitecollar crime cases. Which is to say, this research shows that prosecutors’ non-charge decisions can be checked and controlled, but changing criminal justice practice is (to paraphrase Max Weber) the strong and slow boring of hard boards. Prosecution is understudied. I hope this book encourages more research about the important but neglected subject of decisions not to charge. If I see a little further than previous analysts, it is because I have benefited by standing on their shoulders. I also hope this book enables others to see further yet. If some readers change their minds while reading it (as I did while writing), all the better. Honolulu, USA

David T. Johnson

Acknowledgments

I received much help and advice while working on this book, but two people deserve special thanks for their extraordinary insight and generosity: Satoru Shinomiya and Takeshi Nishimura, both of whom are attorneys in Japan. I also am grateful to some Japanese prosecutors whose names must remain anonymous. They will not agree with everything in this book but it is better because they cared. More generally, I learned a lot from path-breaking works on prosecution and democracy by David Alan Sklansky, Maximo Langer, and the late, great Kenneth Culp Davis. Carl F. Goodman and Mark D. West wrote seminal studies about Japan’s Prosecution Review Commission, and I learned many things from them as well. Thank you all. A shorter version of this book was published in Japanese by Iwanami Shinsho in 2022 as Kensatsu Shinsakai: Nihon no Keiji Shiho o Kaeru ka [Will Prosecution Review Commissions Change Criminal Justice in Japan?], co-authored by Mari Hirayama and Hiroshi Fukurai. I thank those collaborators and I also thank Iwanami editor Noriyuki Shimamura for guiding us through that publication process, and Josie Taylor at Palgrave Macmillan for adroitly managing this one.

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Praise for Japan’s Prosecution Review Commission

“What is – and what should be – the role of citizens’ preferences in making prosecution decisions? This fascinating and well documented book takes Japan as its case study. The country’s high conviction rate reflects a cautious and conservative charging policy that leaves many victims of crime feeling abandoned by the prosecutors who are supposed to be their allies and advocates. By contrast, its Prosecution Review Commission – the subject of this book – enables citizens to exert some external accountability on prosecutors for their non-charge decisions. The book explores the strengths and weaknesses of Japan’s system while stimulating readers to ask whether other systems of justice have more or less need of such a body. The findings are interesting and important and make a significant contribution to studies of Japanese criminal justice and comparative criminal justice more generally.” —David Nelken, Dickson Poon Law School, King’s College London, UK “This book provides unprecedented insight into the complex dynamics of democracy in a fascinating country where crime rates are low and

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conviction rates high. The focus is Japan’s Prosecution Review Commission, which is the principal mediator between different visions of democracy and the main actor in that country’s criminal justice system – the prosecutor. David Johnson takes us skilfully beyond simple explanations in this clear, balanced, and empirically grounded analysis of an understudied institution which asks citizens selected by lottery to check the non-charge decisions of professional prosecutors. The result is highly recommended for readers interested in understanding the complexities of Japanese criminal justice and the relationship between prosecution and democracy.” —Dimitri Vanoverbeke, Professor of Law and Society, University of Tokyo, Japan “This is the first systematic and comprehensive book on Japan’s Prosecution Review Commission (PRC) written in English in the world. The PRC was established in the postwar occupation, to enhance democracy in Japanese criminal justice. It is composed of eleven lay people selected randomly from voter registration lists, and its main mission is the review of prosecutors’ non-charge decisions. This book explains the PRC’s history and impacts and identifies lessons for Japan and other countries that are based on original research that is rich in facts and analysis. It brilliantly combines scholarly reflections on the PRC with practical suggestions for making prosecution more democratic. It is a major achievement.” —Satoru Shinomiya, Professor of Law, Kokugakuin University, Japan

Contents

1

Prosecutors and the Prosecution Review Commission The Problems with Prosecutors Power Discretion Misconduct Ideology Accountability Inertia Role Ambiguity Three PRC Frames Victims Impunity Democracy Conclusion

1 9 10 11 13 14 15 16 17 19 20 23 27 30

2

PRC Origins and Operations Origins The PRC Law of 1948 The PRC Reform of 2009

33 33 36 39

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Contents

Operations A Japanese Grand Jury? A Japanese Special Prosecutor? Conclusion

46 53 56 58

3

PRC Impacts A Bird’s-Eye View Kickback Patterns Kickback Effects A Surge of Complaints Conclusion: Legitimation, Kickbacks, and Shadow Effects

61 63 70 75 84 89

4

Mandatory Prosecution Akashi Pedestrian Bridge Case JR West Amagasaki Rail Crash Case Okinawa Unlisted Stock Fraud Case Rikuzankai Incident Senkaku Islands Ship Collision Case Tokushima Town Mayor Assault Case Golf Instructor Quasi-Rape Case Judo Student Severe Injury Case Tomei Road Rage Internet Libel Case TEPCO Nuclear Meltdown Case Conclusion

5 The TEPCO Prosecutions and Acquittals Prosecutions Trial Shaky Prediction? No Duty to Shut It Down? Absolute Safety Not Required? What If? Reactions to the Acquittals Analysis

91 93 96 99 100 104 106 108 112 115 118 119 123 128 135 139 140 142 143 144 148

Contents

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Prosecution and Truth Comparisons The Under-Prosecution of White-Collar Crime The Limits of the Criminal Sanction

149 151 156 159

Lessons A Failure to Prosecute Rape Lessons It Is Possible to Check Prosecutors’ Non-charge Decisions Origins Legitimation Effects Kickback Effects Shadow Effects Few Mandatory Prosecutions and Convictions The Challenge of Controlling White-Collar Crime Knowledge Gaps Citizen Satisfaction PRC Dangers Prosecution and Democracy Implications for Other Countries Reform in Japan

163 164 177

Index

178 179 179 180 181 181 182 183 184 184 186 188 192 199

List of Tables

Table 1.1 Table 1.2 Table 3.1 Table 3.2 Table 3.3 Table 3.4 Table 3.5 Table 3.6 Table 3.7

Table 3.8

Penal Code cases disposed of by prosecutors in Japan, 2019 (% of suspects processed) Incarceration rates in 25 countries in 2021 (inmates per 100,000 population) Cases investigated and proposals & recommendations by PRCs, 1989–2019 Penal Code suspects investigated by PRCs, by offense, 2019 and 1949–2018 Suspects not charged by prosecutors, by reason, 2020 (with percentages) PRC dispositions, 1949–2019 Prosecutor disposition after PRC kickbacks, 2001–2019 (number of suspects) Prosecutor charge rate after PRC kickbacks, 1949–2019 Prosecutor disposition after PRC kickbacks for suspended prosecution cases, 1997–2019 (number of suspects) Prosecutor disposition after PRC kickbacks for insufficient evidence cases, 2001–2019 (number of suspects)

3 4 65 68 70 71 77 78

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List of Tables

Table 3.9

Trial result after cases charged by prosecutors following PRC kickbacks, 2002–2019 Mandatory prosecutions, 2009–2021

Table 4.1

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1 Prosecutors and the Prosecution Review Commission

Prosecutors have tremendous control over life, liberty, and reputation. They can take your freedom, money, and peace of mind. They may sully your record and reputation. They can influence your employability and livelihood. They may take people away from your family and take away your ability to form a family in the first place. They can make arrests, conduct investigations, and present evidence at trial. And most fundamentally, prosecutors decide whether to file criminal charges. This is significant because when prosecutors choose cases to charge they are also choosing defendants. If so inclined, a prosecutor stands a good chance of finding some violation by almost anyone. In Japan, prosecutors exercise so much power and discretion that Japanese criminal justice is often called a system of “prosecutorial justice” (kensatsu shiho).1 In some respects prosecutors in Japan are even more powerful than their American counterparts, who are themselves

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Gohara Nobuo, “Japanese ‘Prosecutors’ Justice’ on Trial,” June 15, 2020, at https://www.nip pon.com/en/in-depth/a06802/. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. T. Johnson, Japan’s Prosecution Review Commission, Palgrave Advances in Criminology and Criminal Justice in Asia, https://doi.org/10.1007/978-3-031-19373-6_1

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extremely powerful,2 for unlike prosecutors in the United States, prosecutors in Japan routinely conduct investigations and interrogations, and they can also appeal acquittals. Japanese prosecutors also have almost monopoly power to make charging decisions, and they may choose not to file charges in any case, no matter how serious the crime or how strong the evidence. In contrast, American prosecutors share responsibility for charging decisions with several other actors, including police (in rural jurisdictions and misdemeanor cases especially), citizens (private prosecutions remain legal in some American states),3 judges (in preliminary hearings), and grand juries (which issue indictments). In short, the powers of Japanese prosecutors are vast. Prosecutors in Japan tend to exercise their power to charge cautiously, by following a conservative charging policy which mandates that they charge a case only if it is all but certain to end in conviction. The most well-known results of this “trial sufficiency policy” are a conviction rate that approaches 100% and an acquittal rate that is close to 0.4 Another sign of this charging conservatism is the frequent use of “suspended prosecution” (kiso yuyo). Under Article 248 of Japan’s Code of Criminal Procedure, even if prosecutors believe there is sufficient evidence to convict, they may withhold charges when they deem prosecution “unnecessary” in light of other considerations, such as the public interest or the offender’s rehabilitation. In recent years more than 55% of criminal cases have resulted in suspended prosecution (see Table 1.1). In 2000 the corresponding figure was about 40%, so the use of suspended prosecution has increased considerably in recent years. The proportion of criminal cases going to trial has also increased, from 6% in 2000 to more than 9% in 2019. Conversely, the use of summary orders (ryakushiki meirei seikyu) has declined by almost half in the last two decades, from more than 40% of all cases disposed of in 2000 to just 22% in 2019. 2

Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (Oxford, 2007). On private prosecution in the United States and other countries, see Jamil Ddamulira Mujuzi, “The Right to Institute a Private Prosecution: A Comparative Analysis,” International Human Rights Law Review, Vol. 4, No. 2 (2015), pp. 222–255. 4 David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford, 2002), p. 230; and Murai Toshikuni and Muraoka Keiichi, “Order in the Court: Explaining Japan’s 99.9% Conviction Rate,” January 18, 2019, at https://www.nippon.com/en/japan-topics/c05 401/order-in-the-court-explaining-japan%E2%80%99s-99-9-conviction-rate.html. 3

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Table 1.1 Penal Code cases disposed of by prosecutors in Japan, 2019 (% of suspects processed) Disposition

Percentage of suspects (%)

Public trial Summary order Suspended prosecution Other non-prosecution Sent to family court Total

8.9 22.2 56.6 6.9 5.3 100

Source Japanese Ministry of Justice, Hanzai Hakusho (2020), at http://hakusyo1. moj.go.jp/jp/67/nfm/images/full/h2-2-4-1.jpg

In sum, prosecutors in Japan are deciding not to charge many cases that could be charged, with profound consequences for who gets what in the criminal process and in society more generally. It is here where Prosecution Review Commissions (kensatsu shinsakai) become relevant, because the main mission of citizens serving on PRCs is to check the power and discretion of prosecutors by reviewing their non-charge decisions. Japan’s conservative charging policy has many consequences. Most notably, it results in less use of imprisonment than do prosecution systems in most other democracies. As shown in Table 1.2, Japan’s incarceration rate of 39 inmates per 100,000 population in 2021 was one-sixteenth the incarceration rate for the United States (639) and less than one-fourth the average rate for the other 24 countries in the table. Among the 38 market democracies in the Organization for Economic Co-operation and Development, only Iceland’s incarceration rate of 33 per 100,000 was lower than Japan’s—by a little. Japan’s incarceration rate has declined by 40% in the last 15 years, from a peak of 64 inmates per 100,000 population in 2006 to just 39 per 100,000 in 2021. The criminal sanction has limited capacity to do good and great potential for doing harm.5 In this light, Japan’s parsimonious use of imprisonment can be called a significant virtue. Japan’s conservative charging policies probably result in fewer wrongful convictions than more aggressive charging policies would. Far from being the sign of an authoritarian “iron hand” of justice that tries 5

Herbert L. Packer, The Limits of the Criminal Sanction (Stanford University Press, 1968).

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Table 1.2 Incarceration rates in 25 countries in 2021 (inmates per 100,000 population) Country

Incarceration rate

USA Thailand Brazil Russia Taiwan Philippines Singapore New Zealand Australia Mexico Vietnam China United Kingdom Canada South Korea France Indonesia Germany Sweden Netherlands Japan Pakistan India Iceland Republic of Congo Average

639 549 357 341 258 200 195 188 160 158 128 121 114 107 105 87 85 69 68 63 39 38 35 33 27 167

Source World Prison Brief, at https://www.prisonstudies.org/highest-to-lowest/pri son-population-total

to convict offenders at all costs (as the Western media often claim when they cover Japanese criminal justice), Japan’s high conviction rate reflects caution about whether and what to charge. Indeed, many offenders who would be criminally charged in other systems of criminal justice are not charged at all in Japan. In this sense, Japan’s charging conservatism may

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be more protective of the rights and interests of criminal suspects than systems of criminal justice with lower conviction rates.6 But of course, Japan’s conservative charging policies have negative consequences too. Many victims of crime feel abandoned, betrayed, and disappointed by prosecutors who do not charge the people who have offended against them. There are relatively few criminal trials where guilt is vigorously contested and citizens can be instructed in the “classroom of the courtroom” about law, government, and the rights and duties of citizenship. When a contested trial does occur, it is difficult for judges to remain neutral because issuing 99 convictions for every acquittal sometimes numbs their sensitivity to reasonable doubt. The supply of skilled and vigorous defense lawyering gets suppressed, for who wants to do criminal defense when the chances of victory at trial are so slim? The Japanese public loses some of the benefits of criminal deterrence that a more aggressive charging policy would generate. And in cases where the crime is serious, the defendant denies guilt, and there is pressure to produce a conviction, the risk of false confession rises, as does the risk of wrongful conviction.7 Many of the most serious miscarriages of justice in Japan have occurred in these circumstances—including the wrongful conviction of Hakamada Iwao, who was sentenced to death in 1968 and released from death row in 2014 because of evidence of his innocence. A “culture of denial” makes it difficult for prosecutors, judges, and other legal authorities to acknowledge these terrible mistakes.8 In 2004, the Japanese Diet passed two laws—the Lay Judge Law, and a revised Prosecution Review Commission Law—to promote greater lay participation in criminal justice. Both took effect in 2009, and both raise questions about Japanese criminal justice and society. Will new forms of lay participation alter the conservative approach to prosecution that 6 Bruce Aronson and David T. Johnson, “Comparative Reflections on the Carlos Ghosn Case and Japanese Criminal Justice,” The Asia-Pacific Journal/Japan Focus, Vol. 18, Issue 24, No. 2 (December 15, 2020), pp. 1–23. 7 Takano Takashi, Hitojichi Shiho (Kadokawa Shinsho, 2021); and David T. Johnson, “Hostage Justice and Wrongful Convictions in Japan,” Asian Journal of Criminology, Vol. 18, 2023 (forthcoming). 8 David T. Johnson, “Nihon no Enzai to ‘Hitei no Bunka’,” Sekai, January 2015, pp. 216–226. As of August 2022, prosecutors were appealing to have the 86-year-old Hakamada returned to death row.

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has prevailed in Japan in the postwar period? Will they result in more acquittals? Will more victims be satisfied by how their cases are handled? How much power should prosecutors have, and how should they exercise their discretion? How can Japanese prosecutors be held accountable for their decisions? Is prosecution in Japan “democratic”—and in which of the many senses of this multi-vocal word? Most fundamentally, what do Japanese people want their prosecutors to do? There has been much scholarly research about the effects of Japan’s lay judge reform, and there are mountains of media reports about various aspects of that system.9 But few scholars or journalists have studied the reformed Prosecution Review Commission, which now can institute “mandatory prosecution” (kyosei kiso) in some circumstances after prosecutors have decided not to file criminal charges. Until this reform, PRCs only made advisory recommendations to prosecutors, which could be and often were ignored. PRCs are understudied for many reasons, including the closed nature of their proceedings and the fact that few Japanese scholars or reporters do serious research about prosecution. The unfortunate result is that we know little about the origins, operations, and functions of this important institution. The six chapters of this book were written to improve understanding of Japan’s PRC and to introduce this unique system of checking noncharge decisions to criminal justice students and professionals in other countries, where little attention is given to the subject of failed prosecutions.10 The rest of this chapter frames the discussions that follow 9 On recent criminal justice reforms in Japan, see David T. Johnson and Dimitri Vanoverbeke, “The Limits of Change in Japanese Criminal Justice,” Journal of Japanese Law, Vol. 25, No. 49 (2020), pp. 109–165. 10 A promising effort to theorize failed prosecutions is Jon B. Gould, Victoria M. Smiegocki, and Richard A. Leo, “Theorizing Failed Prosecutions,” Journal of Criminal Law & Criminology, Vol. 112, No. 2 (Spring 2022), pp. 329–367. This article is illuminating but it also has limitations. First, the article assumes that persons who are “factually guilty” should be charged and convicted, but this is a dubious assumption. In the United States, for example, the nonprosecution of non-violent misdemeanor offenses often leads to large reductions in subsequent criminal offending; see Amanda Agan, Jennifer L. Doleac, and Anna Harvey, “Misdemeanor Prosecution,” in National Bureau of Economic Research Working Paper 28,600 (March 2021, pp. 1–87). And on the positive consequences of not charging factually guilty persons in Japan, see Daniel H. Foote, “The Benevolent Paternalism of Japanese Criminal Justice,” in California Law Review (March 1992, pp. 317–390). Second, the article on failed prosecutions does not engage a fundamental jurisprudential and criminological question: what is the criminal sanction

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by identifying several “problems with prosecutors” and by summarizing the main ways in which PRCs are discussed in Japanese society. Most importantly, do PRCs serve the needs of victims? Do they help to hold offenders accountable for their crimes? And do they promote democratic prosecution? Chapter 2 then explains the origins of the PRC in the postwar period, describes its operations, and explains the social and political forces that led to its recent reform. Chapters 3–5 are the empirical core of this book, for they discuss the PRC’s main impacts. Chapter 3 shows that often—about 90% of the time—PRCs ratify prosecutors’ non-charge decisions by concluding that “non-indictment is appropriate” (fukiso soto). In this sense, PRCs play an important role legitimating prosecutorial decision-making. Prosecutors also charge cases in the shadow of PRC review. In these cases, the possibility of PRC review prompts prosecutors to charge and thereby avoid PRC scrutiny in the first place. In addition, prosecutors sometimes respond to cases that are “kicked back” by PRCs (kenshin bakku) with “non-indictment is not appropriate” (fukiso futo) or “indictment is appropriate” (kiso soto) recommendations by changing a non-charge decision to charge. And sometimes, when PRCs conclude that “prosecution is appropriate” (kiso soto) twice in the same case, the result is a “mandatory prosecution” or “forcible indictment” (kyosei kiso) that overrules a decision not to charge that prosecutors made. This type of prosecution happened only 10 times in the first 12 years after the 2009 reform, but these cases have attracted a great deal of public attention and are therefore the focus of Chapter 4. Together, Chapters 3 and 4 show that the impacts of the PRC are both obvious and invisible, conservative and progressive, and welcome and worrisome.

good for? For liberal and radical answers to this question, see Herbert Packer, The Limits of the Criminal Sanction (Stanford, 1968), and Nils Christie, Limits to Pain (Oxford, 1981), respectively. Third, the article says little about how prosecutorial discretion shapes failed prosecutions; see, for example, Kenneth Culp Davis’s Discretionary Justice (University of Illinois, 1969), a classic work which stimulated much research on discretionary decision-making in American criminal justice. And fourth, though it focuses on failed prosecutions in the United States, the article says little about plea bargaining, which is how approximately 95% of criminal cases are decided; see Carissa Byrne Hessick, Punishment Without Trial: Why Plea Bargaining Is a Bad Deal (Abrams Press, 2021).

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Chapter 5 then continues the analysis of impacts with a case study of the most important mandatory prosecution by a PRC: the charges brought against three executives of the Tokyo Electric Power Company (TEPCO) for criminal negligence leading to the nuclear meltdown at Fukushima on March 11, 2011 following a huge but not unprecedented earthquake and tsunami. All three executives were acquitted in 2019 when the Tokyo District Court concluded that there was insufficient evidence to convict. Following that verdict, many Japanese prosecutors and observers essentially said “we told you so – these men should not have been charged.” But I argue that a courtroom loss does not mean the cases should never have been charged, for the TEPCO trial and the criminal process that preceded it had several important consequences. Most notably, many facts were revealed that were previously unknown, concealed, or denied. In this way, the TEPCO case clarified the truth about the Fukushima meltdown by exposing some corporate and government claims as nonsense. In Chapter 6, this book concludes by discussing lessons to learn from this study of Japan’s Prosecution Review Commission and by exploring the implications of this case study for criminal justice in other countries. The main lesson is that prosecutors’ non-charge decisions can be checked and controlled , though changing prosecution policy and practice often involves what Max Weber called “the slow boring of hard boards.”11 The concluding chapter also notes that while prosecution review can have positive effects for victims, deterrence, and society, there are risks and dangers that need to be recognized, mitigated, and avoided. Some of the takeaways from this study are complicated because criminal prosecution is not a simple subject. In the end, I argue for the central importance of a question that should be the recurrent focus of research and deliberation on prosecutors and democracy. What is the proper role for citizens’ preferences in making prosecution decisions?12

11

Max Weber, “Politics as a Vocation” (speech at Munich University in 1918), in H.H. Gerth and C. Wright Mills, editors and translators, Max Weber: Essays in Sociology (Oxford University Press, 1946), pp. 77–128. 12 For a parallel question about the proper role for citizen preferences in structuring the governance of criminal punishment in democratic systems, see Franklin E. Zimring, Gordon

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The Problems with Prosecutors In general, systems of prosecution differ more between developed countries than do systems of policing, trial, or corrections.13 More specifically, prosecution in Japan differs greatly from prosecution in the United States, Germany, and many other major democracies. There are problems with prosecutors in Japan, of course, much as there are with prosecutors in the United States and other democratic nations. One key question is whether Japanese prosecutors exercise their powers fairly, justly, and effectively. In some respects they do. As I concluded two decades ago, “the Japanese way of justice is uncommonly just” in part because Japanese prosecutors often take into account the needs and circumstances of individual offenders, try to treat equals equally, aim to promote the healing of victims (not just the punishment of offenders), and attempt to clarify the facts so as to arrive at some reasonable approximation of the truth in individual cases.14 At the same time, this question is difficult to answer in an unqualified way because fairness, justice, and effectiveness are contested concepts (different people invest the terms with different meanings), and because prosecutors in Japan have not been the subject of much serious study. Yet enough is known to identify seven problems with prosecutors in Japan: power, discretion, misconduct, ideology, accountability, inertia, and role ambiguity.15 All of these problems could be ameliorated through more effective citizen oversight.

Hawkins, and Sam Kamin, Punishment and Democracy: Three Strikes and You’re Out in California (Oxford, 2001), p. x. 13 Michael Tonry, “Prosecutors and Politics in Comparative Perspective,” in Michael Tonry, editor, Prosecutors and Politics: A Comparative Perspective, Crime & Justice: A Review of Research, Vol. 41 (2012), p. 1. 14 David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford, 2002), pp. 277–280. 15 “The problems with prosecutors” in Japan described in this section parallel those discussed in David Alan Sklansky’s superb study of American prosecutors, “The Problems with Prosecutors,” Annual Review of Criminology, Vol. 1 (2018), pp. 451–469.

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Power Prosecutors in Japan are powerful. In fact, they may have more control over life, liberty, and reputation than any other person or profession in that country.16 Many observers believe their powers should be curtailed. On this view, too much power is concentrated in their hands: to charge and not charge, to determine case outcomes, and to shape criminal justice policy. Prosecutors in Japan also work in an adversarial system of criminal justice that is “unbalanced” to their advantage in several significant ways. The laws of criminal procedure are highly “enabling” of police and prosecutor interests in both the investigation and trial stages. Judges in Japan are selected, socialized, rewarded, and punished so as to encourage their deference to the interests of law enforcement. And the activities of Japanese defense lawyers are constrained by three social forces: law, tradition, and the economics of criminal defense. Power is relational in all systems of criminal justice. In Japan, prosecutors have long exercised dominant influence in their interactions with judges and defense lawyers.17 One of the most dangerous powers prosecutors have is the ability to pick defendants instead of cases.18 That is, rather than discovering the commission of a crime and then looking for the person who committed it, prosecutors can pick a person, investigate, and then search the law so as to pin an offense on the target. The prosecution of defense lawyer Yasuda Yoshihiro illustrates this problem. Yasuda is one of Japan’s best known death penalty abolitionists, and he has represented Aum Shinrikyo guru Asahara Shoko and many other notorious criminal defendants. He was, therefore, considered persona non grata in Japanese law enforcement circles. Yasuda was arrested and charged in 1998–1999 for “obstruction of justice,” for allegedly helping a Singaporean real estate 16

David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford, 2002), p. 3. 17 Setsuo Miyazawa, “An Unbalanced Adversary System—Issues, Policies, and Practices in Japan, in Context and in Comparative Perspective,” in Malcolm M. Feeley and Setsuo Miyazawa, editors, The Japanese Adversary System in Context: Controversies and Comparisons (Palgrave Macmillan, 2002), pp. 1–11. 18 David Alan Sklansky, “The Nature and Function of Prosecutorial Power,” Journal of Criminal Law & Criminology, Vol. 106, No. 3 (2017), pp. 473–520.

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developer hide financial assets. He was acquitted by the Tokyo District Court on Christmas Eve in 2003, but prosecutors appealed. The Tokyo High Court found him guilty of “aiding and abetting” and imposed a fine of 500,000 yen (about $5000), which the Supreme Court affirmed after Yasuda and prosecutors appealed (Yasuda claimed he was innocent, and prosecutors argued that a fine was insufficient punishment). After this verdict was finalized, Yasuda called it “a grand compromise” because it settled the case with a punishment that did not disqualify him from legal practice while at the same time “saving face” for prosecutors.19 Even when a “person-first” approach to prosecution is not pursued, charge decisions have a wide array of impacts that reflect prosecutors’ power, from the effects on individuals and their families and friends to the consequences for society more broadly. There is also the awesome power of prosecutors to do nothing. Indeed, the power not to prosecute is as significant as the power to prosecute. As a seminal study of discretionary justice observed, “The affirmative power to prosecute is enormous, but the negative power to withhold prosecution may be even greater, because it is less protected against abuse.”20 In Japan, if a prosecutor charges, the case gets reviewed by defense lawyers, judges, and (in some instances) citizens serving as lay judges. But if a case does not get charged, none of those reviews occur. It is here that Prosecution Review Commissions become important, for their main mission is to review complaints about prosecutors’ decisions not to charge. Many such complaints come from crime victims and their supporters.

Discretion Power and discretion are closely related but analytically distinct. Power is the ability to impose consequences on people or to influence the actions of other actors, such as suspects, defendants, defense lawyers, judges, and lay judges. Discretion can be seen as the freedom to decide whether to take those steps. In general, police work involves more discretion than 19

Yasuda Yoshihiro, Shikei Bengonin: Ikiru to Iu Kenri (Kodansha, 2008). Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (University of Illinois, 1969), p. 188. 20

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law, while the opposite is true of judging. Prosecutors, who bridge the boundary between police and judges, “move more fluidly between law and discretion” than police and judges do.21 In Japan, prosecutors have broad discretion to decide whether and what to charge. In some ways, the criminal statute book is like a menu from which they may order as they wish, though the legal menu for American prosecutors is much longer. This discretion to charge is problematic in at least three ways. First, it bolsters prosecutor power (see above). Second, it can undermine the consistency and predictability of criminal sanctions by enabling arbitrary and capricious decisionmaking. Third, discretion often leads to bias and discrimination on the basis of class, race, gender, status, nationality, and other inappropriate considerations.22 One hallmark of Japanese prosecution is the organizational nature of decision-making. Prosecutors work in a centralized bureaucracy that requires them to follow formal guidelines in many areas of decisionmaking. Their work is also subject to frequent internal review, especially through a form of hierarchical consultation and approval known as kessai. In some respects, this internal, organizational approach to holding prosecutors accountable for their discretionary decisions is more effective than America’s approach of seeking accountability externally through elections, which are seldom seriously contested.23 But Japan’s internal approach to holding prosecutors accountable also falls short of the mark, both in cases that are charged and in cases that are not charged. For example, the kessai review process can result in discretionary decisions that are driven by the need to “get” enemies of the prosecutor organization or of the larger political system, as often happened in the interwar and war years (see Chapter 2), and as still happens today (recall Yasuda’s case, above). Conversely, the kessai review process can result in the squashing of cases that could hurt the reputation of prosecutors or 21 David Alan Sklansky, “The Nature and Function of Prosecutorial Power,” Journal of Criminal Law & Criminology, Vol. 106 (2017), p. 505. 22 David Alan Sklansky, “The Problems with Prosecutors,” Annual Review of Criminology, Vol. 1 (2018), pp. 451–468. 23 See chapter 4, “The Organization of Prosecution,” in David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford, 2002), pp. 119–143.

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their allies. This is what happened in 2021 when prosecutors decided not to charge former Prime Minister Abe Shinzo in the “Sakura o Miru Kai” political funds and election law case,24 and we also saw it in the decision not to indict a former chief of the Tokyo High Public Prosecutors Office (Kurokawa Hiromu) for gambling on mahjong (with reporters), which is against the law and which was in violation of social distancing guidelines during the Covid pandemic. In Kurokawa’s case, political intervention and prosecutorial kessai led to a non-charge decision that was widely criticized.25 The Prosecution Review Commission was created to hold prosecutors accountable for non-charge decisions of this kind.

Misconduct Prosecutors in Japan sometimes behave badly. They fail to disclose potentially exculpatory evidence to the defense. They make improper arguments at trial. They present false evidence at trial. They edit the statements (chosho) of suspects and witnesses in self-serving ways. They employ manipulative and coercive interrogation techniques. They overbear the will of criminal suspects through long and intensive interrogations. And as explained above, they can be hard on their enemies and easy on their friends and allies in politics, business, and law enforcement. It is hard to say how frequently these forms of misconduct occur, but the most common kinds of misconduct appear to be failures to disclose evidence to the defense (a problem which has reached epidemic proportions in the United States), and interrogation excesses and abuses. One example of the latter concerns former Nissan executive Carlos Ghosn, who was interrogated by prosecutors for more than 300 hours over the course of 70 days in 2018–2019. Ghosn repeatedly invoked his right to remain silent, but under Japanese law he still had a “duty to receive questioning” (torishirabe o junin gimu) during interrogation.

24

Egawa Shoko, “Abe zen-Shusho ‘Sakura o Miru Kai’ Fukiso Futo Jiken wa Owatte Inai! Egawa Shoko wa Ko Miru,” Business Journal , August 3, 2021. 25 Masato Shimizu, “Japanese Prosecutors and Politicians Keep Up a Delicate Balance,” Nikkei Asia, May 30, 2020.

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Even low levels of misconduct can undermine public trust in the procuracy and in criminal justice and government more generally. In 2010, prosecutors in Tokyo tried to frame Muraki Atsuko (a senior civil servant in the Ministry of Health, Labor, and Welfare) by forging a floppy disk. Her case attracted much criticism and badly damaged public trust in the procuracy when prosecutors’ misconduct was revealed by the Asahi newspaper.26 Her case also led to criminal justice reform efforts that ironically increased the power and discretion of prosecutors while also allowing for the introduction of the electronic recording of interrogations in a narrow range of cases.27 Of course, not all prosecutor misconduct is as brazen as that which occurred in Muraki’s case, but even when misconduct is not premeditated, as when prosecutors do not realize they are violating the rules of discovery or do not intend to overbear a suspect’s will in interrogation, its effects can be harmful.

Ideology Prosecutors can be overzealous in their pursuit of conviction and punishment. This problem is severe among American prosecutors (not least because the principal channel of prosecutorial accountability is political),28 but it is common in Japan too. One expression of this punitive ideology occurs when imprisonment is used to respond to the crimes of elderly offenders who need social and welfare supports.29 There is also the ideological problem of obstinacy, which is most striking when prosecutors are confronted with evidence of their own mistakes. And then there are the ideological commitments that discourage prosecutors from charging certain offenders. This is common in sex crime cases, when 26 Jeff Kingston, “Justice on Trial: Japanese Prosecutors Under Fire,” Asia-Pacific Journal/Japan Focus, March 7, 2011, pp. 1–23. 27 Suo Masayuki, Sore de mo Boku wa Kaigi de Tatakau: Dokyumento Keiji Shiho Kaikaku (Iwanami Shoten, 2015). 28 For a provocative argument that “overcharging” and “overpunishment” are not problems in the United States, see Barry Latzer, The Myth of Overpunishment: A Defense of the American Justice System and a Proposal to Reduce Incarceration While Protecting the Public (Republic Book Publishers, 2022). 29 Paul Murphy, “Late in Life: Japan’s Elderly Behind Bars,” Asia-Pacific Journal/Japan Focus, October 1, 2016, pp. 1–17.

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prosecutors fail to believe the accounts that girls and women give about their own victimization, but it also occurs in crimes involving police, politicians, white-collar offenders, and perpetrators of domestic violence. In all of these cases, conservative ideology and deference to authority are key causes of under-prosecution.

Accountability Prosecutors in Japan have great power and discretion in part because external checks on their actions are weak. There is no direct electoral accountability, for no Japanese prosecutors are elected. But by law, the Minister of Justice (an elected Member of Parliament) can direct the Prosecutor General (Japan’s top prosecutor) in particular cases. Since a “principle of prosecutor unity” gives the Prosecutor General power to direct all prosecutors in all matters, it is possible for the Minister of Justice, through the Prosecutor General, to influence case outcomes.30 Other forms of external accountability, such as civil suits (kokka baisho seikyu), public opinion, and the analogical institution of prosecution (fushimpan seikyu), do little to control prosecutors’ behavior.31 Within the criminal justice system, courts exercise little oversight over prosecutors’ charging decisions, and prosecutors’ non-charge decisions are virtually unreviewable—except by PRCs. Japan’s laws of criminal procedure also give prosecutors much more influence than defense lawyers, who are supposed to be their main adversary. In short, the most influential checks on the power and discretion of prosecutors in Japan are inside the procuracy. These internal checks combine the expertise developed through professional training, the regularity of process promoted through statements of general policy, and internal reviews

30

David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford, 2002), pp. 119–122. 31 In principle, the analogical institution of prosecution allows judges to file criminal charges for police brutality and some other abuses of official authority, but in practice “it stands a short step away from utter irrelevance.” See David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford, 2002), p. 223.

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(such as kessai), all of which constrain the decision-making of individual prosecutors. But these internal controls can and do fail, leaving an “accountability deficit” that undermines the legitimacy and democracy of prosecution.32

Inertia This problem refers to the strong commitment to habit and tradition in the organizational culture of Japanese prosecutors. Indeed, this office is one of the most hidebound governmental agencies in Japan. In many respects it still operates much as it did decades ago, while police agencies have undergone considerable change in their policies and practices. Police in Japan also tend to be more self-critical, and more focused on performance measures, more strategic in deploying resources, more committed to data analysis, and more adept at public relations.33 Some observers believe police are less insular than prosecutors in Japan, but in my view it is a tie. The problem of inertia in Japanese prosecution also contrasts with the United States, where a movement toward “progressive prosecution” has advanced in many locations,34 and where new “principles of prosecution for the twenty-first century” are being pursued in some jurisdictions.35

32

Ronald F. Wright and Marc L. Miller, “The Worldwide Accountability Deficit for Prosecutors,” Washington & Lee Law Review, Vol. 67, Issue 4 (2010), p. 1600. 33 In these respects, police-prosecutor differences in Japan parallel those in the United States. See David Alan Sklansky, “The Problems with Prosecutors,” Annual Review of Criminology, Vol. 1 (2018), pp. 451–468. 34 See, for example, six articles in the “Symposium on Progressive Prosecution: Legal, Empirical, and Theoretical Perspectives,” The Journal of Criminal Law & Criminology, Vol. 110, No. 4 (Fall 2020), pp. 685–858. 35 Brennan Center for Justice, “21 Principles for the 21st Century Prosecutor,” 2018, pp. 1–32, at https://www.brennancenter.org/sites/default/files/2019-08/Report_21st_century_ prosecutor.pdf.

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Role Ambiguity The final problem with prosecutors in Japan is the ambiguity of their role. This problem has received less attention than the problems described above, but it may be more fundamental.36 Prosecutors face conflicting expectations. They are asked to be both impartial ministers of justice and aggressive advocates for conviction, and they are expected to be servants of the law and agents of mercy and rehabilitation. One key to understanding prosecutors is seeing them as mediating figures who cross conceptual and organizational divides in the criminal justice system. In other words, prosecutors bridge various criminal justice borders: between adversarial and inquisitorial justice, between police and courts, between vengeance and mercy, and between law and discretion. In performing these bridging functions, prosecutors provide the criminal justice system with ideological, institutional, and operational flexibility. It can even be said that prosecutors “specialize in flexibility.”37 The boundary-blurring nature of the prosecutorial role helps explain the centrality of prosecutors in Japanese criminal justice. Understanding this fact is one key to thinking clearly about how to control their power. Yet role ambiguity also makes it hard to hold prosecutors accountable, for how do you make them more accountable when it is not even clear what they are supposed to be doing? Should prosecutors be judged as ministers of justice or as advocates seeking conviction? Should they be evaluated as agents of mercy or deliverers of retribution? Are they best seen as “representatives of the public interest” (koeki no daihyosha) or as advocates for the interests of victims? Under victim participation laws that took effect in 2000 and 2008, the prosecutor’s role has become even more complicated. Now, prosecutors often refer to themselves as “crying together with victims” (higaisha to tomo ni naku), and they see themselves as needing to represent the needs and interests of crime victims

36 David Alan Sklansky, “The Nature and Function of Prosecutorial Power,” Journal of Criminal Law & Criminology, Vol. 106 (2017), pp. 473–520. 37 David Alan Sklansky, “The Problems with Prosecutors,” Annual Review of Criminology, Vol. 1 (2018), p. 461.

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and survivors. In other respects as well, prosecutors and victims in Japan have become closer than they used to be.38 In sum, the ambiguity of the prosecutor’s role reflects complexity about what prosecutors do and what they should do. It also helps explain why efforts to address “the problems with prosecutors” in Japan have been modest in their ambition and mostly unsuccessful in achieving their limited aims.39 ∗ ∗ ∗ There are serious “problems with prosecutors” in Japan, and Prosecution Review Commissions have the potential to ameliorate some of them. As an institution that reviews prosecutors’ non-charge decisions and that can encourage or require cases to be charged, the PRC could reduce prosecutors’ power and discretion (problems 1 and 2). By enabling PRCs to institute “mandatory prosecution,” this institution could tame the tendency of prosecutors to be inappropriately lenient toward their friends and allies (problem 3). By permitting a panel of 11 citizens to review and override non-charge decisions made by professional prosecutors, the PRC can address the problem of conservative prosecutorial ideology (problem 4). In a context where prosecutors are seldom called to account for their decision-making, Japan’s 165 PRCs can hold prosecutors accountable for some of their most important (non-charge) decisions (problem 5). Over time, this could make prosecutors less resistant to change (problem 6). And by giving prosecutors feedback about what cases should be charged, PRCs could reduce ambiguity in the prosecutor’s role expectations (problem 7).40

38

David T. Johnson and Dimitri Vanoverbeke, “The Limits of Change in Japanese Criminal Justice,” Journal of Japanese Law, No. 49 (2020), pp. 142–145. 39 This is one theme of Suo Masayuki’s trenchant analysis of criminal justice reform in Japan; see Sore de mo Boku wa Kaigi de Tatakau: Dokyumento Keiji Shiho Kaikaku (Iwanami Shoten, 2015). It is also an American theme; see David Alan Sklansky, “The Nature and Function of Prosecutorial Power,” Journal of Criminal Law & Criminology, Vol. 106 (2017), p. 513. 40 To address parallel problems with American prosecutors, David Alan Sklansky has presented various proposals for reform. See “The Problems with Prosecutors,” Annual Review of Criminology (2018).

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Japan’s original PRC Law was promulgated in 1948 and then revised in 2009. Is this unique institution mitigating the problems with prosecutors? It is not hard to state what one hopes PRCs will do or to speculate about how they might be performing, but describing their actual impacts on Japanese law and society has never been done. The remaining chapters of this book take up that challenge, but first I will describe three ways in which PRCs are commonly framed and discussed in Japanese society.

Three PRC Frames “Frames” are categories and concepts that focus human perceptions and shape what counts as a good or bad outcome. They can seldom be directly seen or heard. Rather, they are part of what cognitive scientists call the “collective unconscious,” which influences how people reason and what counts as “common sense.”41 There are three main frames in Japanese discourse about Prosecution Review Commissions. The first is victims, whose needs and interests have often been overlooked and ignored in Japanese criminal justice, and who file many of the requests for PRCs to review prosecutors’ non-charge decisions. A second common frame concerns the need to hold offenders accountable for their crimes. In pursuing this aim, PRCs can reduce the problem of impunity that can accompany non-prosecution. The third major frame for thinking about PRCs—democracy—is the broadest and most fundamental. It is also the most complex, for there are competing views about the proper relationship between prosecution and democracy, and several of them are reasonable. Contrary to popular belief, “democratic prosecution” does not simply mean that prosecutors should act as “agents of the people.” Indeed, it is often unclear what the former phrase even means.

41

George Lakoff, Don’t Think of an Elephant! Know Your Values and Frame the Debate (Chelsea Green Publishing, 2004), p. xv.

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Victims In Japan, victims are the most popular frame for perceiving PRCs. When a criminal case is not charged it is common to ask what it means for victims and their supporters, and some victims feel neglected or ignored. There are many ways in which victims feel that their needs and interests are disregarded. What they want varies from case to case, but it is possible to identify their main interests and desires. In general, victims crave things that will alleviate their pain and support their well-being, and what they want is often but not always consistent with the broader interests of justice and safety. Victims want the person who hurt them to be held accountable for their conduct. Victims want validation that what happened to them is wrong. Victims want answers to questions about what happened and why. Victims want to speak and be heard. Victims want what they say to have an impact; that is, they want some control over the response to their victimization. Victims want access to the resources they need to heal and be safe. Victims want the person who harmed them to repair the harm as much as possible. Victims want to be safe and feel safe, and this includes protection from the person who hurt them. Above all, victims want to know that the person who hurt them will not hurt anyone else.42 Before the turn of the twenty-first century Japanese criminal justice often failed to serve these needs, but in recent years victims have become more important in the criminal process.43 Toward that end, Japan’s Code of Criminal Procedure was revised twice: first in 2000, to enable victims or their representatives to make Victim Statements of Opinion (VSO) 42

On what victims want and why, see Danielle Sered, Until We Reckon: Violence, Mass Incarceration, and a Road to Repair (New Press, 2019), pp. 20–31. 43 David T. Johnson and Dimitri Vanoverbeke, “The Limits of Change in Japanese Criminal Justice,” Journal of Japanese Law, Vol. 25, No. 49 (2020), pp. 142–145.

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regarding their case, and then again in 2008, to create a Victim Participation System (VPS) that gives victims rights in some cases, including the right to attend trial, the right to express an opinion to prosecutors about how state authority should be exercised, the right to question witnesses, and the right to make a statement to the court about the facts of a case and the application of law. Some observers believe these reforms have harmed Japanese criminal justice, by undermining fairness and due process (a procedural claim), and by making sanctions harsher (a claim about outcomes).44 But the results of victim-centered reform are more complicated than these critiques claim, and they are also more modest. Overall, the available evidence does “not allow for clear conclusions as to how victim participation impacts sentencing practices – or fact-finding practices, for that matter.”45 In some cases the VSO and VPS reforms have had an impact on criminal sanctions, typically by making sentences a little harsher, especially for sex crimes. These victim-centered reforms have also made some criminal proceedings more emotional, especially in homicide trials, where tears frequently flow and emotions often run hot. At the same time, the new forms of victim participation have made Japanese criminal justice more “therapeutically oriented,” by fostering practices to improve the emotional and psychological wellbeing of crime victims and survivors.46 Considering how victims used to be marginalized, these changes could be called progress. But efforts to serve victims are also limited and troubling in several respects. Most victims of crime never report it to the police. For example, recent surveys show that victims go to the police in only 5% or so of sexual assault cases.47 Moreover, when victims do report the police might 44

Setsuo Miyazawa, “The Politics of Increasing Punitiveness and the Rising Populism in Japanese Criminal Justice Policy,” Punishment & Society, Vol. 10, Issue 1 (January 2008), pp. 47–77. 45 Erik Herber, Lay and Expert Contributions to Japanese Criminal Justice (Routledge, 2019), p. 126. On victims and sentencing practices more generally, see Masahiko Saeki, Hanzai Higaisha no Shiho Sanka to Ryokei (Tokyo, 2016). 46 Erik Herber, Lay and Expert Contributions to Japanese Criminal Justice (Routledge, 2019), pp. 115–126. Note, too, that taking victims seriously does not necessarily imply harsh punishment; see Kent Roach, “Four Models of the Criminal Process,” Journal of Criminal Law & Criminology, Vol. 89, Issue 2 (Winter 1999), pp. 671–716. 47 Some of the survey results are summarized in Ito Shiori, Black Box (Bungei Shunju, 2017), p. 3.

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not even record it. Victims of crime are also largely excluded from the pretrial processes where issues are narrowed, trial schedules are decided, and outcomes are shaped. And the vast majority of victims choose not to participate in the Victim Participation System. When they do participate, their statements tend to be well-rehearsed and highly scripted, with prosecutors playing the role of director. Preparatory meetings between victims and prosecutors are common, with “witness tests” (shonin tesuto) repeated several times before they are enacted at trial. At trial, judges decide which victims can participate, and they monitor and restrict what victims say. In acts that have been praised by progressives but lamented by police, prosecutors, victims, and lay judges, judges sometimes require photographic evidence of victims’ injuries (and corpses) to be softened and blurred (kako suru) before being shown in court, in order to reduce the potential for prejudicial effects on lay judges, and in order to protect lay judges from the “emotional and psychological burden” (seishin teki futan) of viewing the corporeal consequences of crime. For the most part, the new forms of victim participation are substantively “conservative” in that they reinforce traditional patterns in Japanese criminal justice. Many defendants and defense lawyers feel constrained by the victims’ centrality at trial, for it is difficult to challenge the accuracy of their assertions or the authenticity of their feelings without seeming to disrespect them. Some defense lawyers find it hard to speak in their client’s defense out of fear that lay judges will think they are “blaming the victim” or that the defendant is insufficiently remorseful. This self-censorship may increase the risk of conviction and punishment. In these ways, Japan’s new forms of victim participation keep defense lawyers docile and pressure defendants into submitting to authority. In the end, the victim participation systems perpetuate two longstanding patterns in Japanese criminal justice: the subordination of the defense to the prosecution, and reliance on the tropes of “repentance, confession, and absolution,” even when such expressions are misleading or insincere.48

48

David T. Johnson and Dimitri Vanoverbeke, “The Limits of Change in Japanese Criminal Justice,” Journal of Japanese Law, Vol. 25, No. 49 (2020), p. 145.

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If crimes do not get reported, the PRC can do nothing to help victims. But when crimes that are reported do not get charged, the PRC becomes an institution that victims can use to bend the power of prosecution toward their own needs and interests. There are risks in this approach, for not all cases should be prosecuted, and not all “victims” were really victimized. More fundamentally, criminal justice system is not primarily a victim-service program. But the PRC is an instrument for taming the power of professional prosecutors to disregard the needs and interests of victims. This is not the only mission (nor is it the main mission) of a democratic system of criminal justice, but surely it is one appropriate objective.

Impunity The criminal sanction is both a prime guarantor of human freedom and a major threat to it.49 In some cases and contexts it helps to hold offenders accountable and to control crime, but it can also be used excessively and indiscriminately. The latter problems are less pernicious in Japan than in the United States, where mass incarceration is a serious social problem with a wide array of harmful consequences, but there is also the problem of impunity that comes when criminal offenders are not held accountable. Human rights activists and anti-corruption reformers often talk about “cultures of impunity” in Third World countries where murder, the looting of economic resources, and other crimes by the powerful routinely go unpunished. In those nations (Indonesia, Brazil, Pakistan, and so on), police, government officials, and their cronies in the private sector abuse their power in part because they know they will not be held to account—and they know that their victims know too.50 In such circumstances, establishing the rule of law requires demonstrating that the powerful will be brought to justice.51 This is no easy task, for the 49

Herbert L. Packer, The Limits of the Criminal Sanction (Stanford, 1968). Paul Starr, “Cultures of Impunity,” The American Prospect, July 24, 2015. 51 Raymond Fisman and Edward Miguel, Economic Gangsters: Corruption, Violence, and the Poverty of Nations (Princeton, 2008). 50

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corruption and violence that plague developing nations are deeply rooted in cultures of impunity.52 In 2002, in the wake of massive crimes in central Africa and the Balkans, the International Criminal Court in The Hague was created as a court of last resort for crimes that countries are unwilling or unable to prosecute. It is the first and only permanent international court with jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC is staffed by more than a thousand lawyers, investigators, and administrators from around the world, and it has the backing of more than 120 nations, but it struggles to assert itself in controversial political cases. Ultimately, the ICC’s effectiveness is dependent on sovereign states—particularly the world’s leading powers. When the interests of powerful states are implicated, they often pressure the Court to keep its distance.53 Of course, the problem of impunity occurs in developed nations too, including the United States, which has been called “The Land of Impunity”54 and which often excuses acts of violence or refuses to name them in the first place.55 In Japan as well, several types of criminal offenders are under-prosecuted, leading to failures of justice on a large scale. The list of lawbreakers who regularly escape accountability includes the following groups. • Police, whose reputation for rectitude is often overstated.56 Ochiai Hiromitsu, a veteran reporter for Japan’s newspaper of record, has observed that the dictionary defines “lawless” as “where law does not apply.” On this definition, he says, police are “Japan’s most lawless 52

Sarah Chayes, Thieves of State: Why Corruption Threatens Global Security (W. W. Norton & Co., 2015). 53 David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics (Oxford University Press, 2014); and William A. Schabas, An Introduction to the International Criminal Court (6th edition, Cambridge University Press, 2020). 54 John Nichols, “The Land of Impunity,” The Nation, February 7–14, 2022, pp. 18–21, 27. 55 David Alan Sklansky, A Pattern of Violence: How the Law Classifies Crimes and What It Means for Justice (The Belknap Press of Harvard University Press, 2021), p. 6. 56 Setsuo Miyazawa, Policing in Japan: A Study on Making Crime (State University of New York Press, 1992).

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group.”57 Regardless of their conduct, they are almost never criminally charged.58 • Immigration officials, especially those in charge of the detention centers where at least 27 foreign detainees died between 1997 and 2021. Unlike inmates in Japanese jails and prisons, foreigners in these facilities (also known as “gaijin tanks”) have no specific limit to their detention period. As of 2018–2019, more than 50% of the 1309 detainees in the country had been detained for six months or longer, and in the Higashi Nihon (East Japan) Detention Center in Ibaraki prefecture, 88% of detainees had been held for more than a year.59 More generally, Japan’s immigration system is run by an “opaque and capricious bureaucracy that has nearly unchecked power over foreigners who run afoul of it.”60 Cruel and unusual punishment is prohibited by Article 36 of Japan’s Constitution, but conditions in the country’s detention centers are so harsh that detainees—including many seeking refugee status, which is granted to less than 1% of applicants—often give up and choose to be deported. Professional negligence resulting in death or injury appears to be common in Japan’s immigration detention centers, but no one has ever been charged and convicted of this crime. • Politicians, especially elites in the ruling (and conservative) Liberal Democratic Party. Prosecutors have been proclaiming for decades that they “will not let the wicked sleep.”61 But as investigative reporter

57

Ochiai Hiromitsu, “‘Ura Chobo’ ‘Naibu Kokuhatsu’ ‘Taisaku Manyuaru’ no Santen Setto de Semero,” in Terasawa Yu, editor, Omawari san wa Zeikin Dorobo (Mediaworks, 1998), pp. 128–161. 58 Setsuo Miyazawa, “Scandal and Hard Reform: Implications of a Wiretapping Case to the Control of Organizational Police Crimes in Japan,” Kobe University Law Review, No. 23 (1989), pp. 13–27; and David T. Johnson, “Policing in Japan,” in James D. Babb, editor, The Sage Handbook of Modern Japanese Studies (Sage, 2015), pp. 222–243. 59 Debito Arudou, “Visible Minorities: Torture and Murder in Japan Detention Centers,” Shingetsu News Agency, June 20, 2022. On abuse in the Ibaraki detention center, see also the film “Ushiku,” directed by Ian Thomas Ash (2021, 87 minutes). 60 Ben Dooley and Hisako Ueno, “Japan Is Shaken After a Detainee, Wasting Away, Dies Alone in Her Cell,” New York Times, August 10, 2021. 61 Itoh Shigeki, Damasareru Kenji (Tachibana Shobo, 1982).

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Tachibana Takashi famously observed, “The wicked are sleeping. Prosecutors, wake up!”62 The most striking recent example of impunity for politicians was the decision by prosecutors in the Tokyo Special Investigation Division (tokusobu) not to charge any of the 100 elected officials who took money ahead of the 2019 House of Councillors election in exchange for their support of Kawai Anri (the wife of Minister of Justice Kawai Katsuyuki), who was running for office in the upper chamber of Japan’s Diet. After a citizens group filed a complaint against this decision, a Prosecution Review Commission in Tokyo ruled that indictment was appropriate for 35 of the 100 bribetakers. In March 2022 prosecutors announced that 34 of them would be prosecuted. Separately, Kawai Katsuyuki and Kawai Anri were found guilty of violating the Public Offices Election Law and given a prison sentence and a suspended prison sentence, respectively.63 • White-collar offenders, both individual and organizational. Japan has some of the lowest street crime rates in the world, but the problems of white-collar crime and corporate crime are serious. These crimes are committed both for personal gain and to advance the goals of an organization. Research shows that controlling them requires proactive law enforcement policies.64 • People who commit domestic violence against spouses, partners, parents, and children. The number of women contacting domestic violence service centers in Japan has been increasing for almost two decades, but criminal indictments are seldom brought against the

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Tachibana Takashi, Kyoaku vs. Genron (Bungei Shunju, 1993). The Mainichi, “Prosecutors to Indict 34 Local Politicians, Others in Hiroshima Vote-Buying Scandal,” March 7, 2022. Of course, impunity for political leaders is not just a Japanese problem. In recent years, former political leaders have been investigated and prosecuted worldwide. Research on this subject finds that “both sweeping immunity and overzealous prosecutions can undermine democracy,” and these cases pose different risks for mature democracies than for nascent ones. See Victor Menaldo, James D. Long, and Morgan Wack, “Prosecuting ExPresidents for Corruption Is Trending Worldwide—But It’s Not Always Great for Democracy,” The Conversation, March 16, 2021. 64 David T. Johnson, “Kumo no Su ni Shocho Sareru Nihonho no Tokushoku,” Jurisuto, No. 1148 (January 1–15, 1999), pp. 185–189; and David T. Johnson, “Nihon no ‘Kumo no Su’ Shiho to Kensatsu no Katsudo,” in Keiji Shiho o Ninau Hitobito, Volume 3 in the series Keiji Shiho o Kangaeru (Iwanami Shoten, 2017), pp. 29–51. 63

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(mostly male) offenders. Similar patterns of impunity have been documented with respect to offenses against children and parents.65 • Men who rape, sexually assault, and molest women and girls. As depicted in Suo Masayuki’s hit film, “Sore demo Boku wa Yatte Inai ” (“Even So I Didn’t Do It,” 2006), the prosecution of sex offenders can go horribly wrong. But on the whole, sex crimes in Japan are underreported, under-investigated, and under-prosecuted. The result is a widespread feeling of impunity among men who know there will probably be little price to pay for offending against women and girls. This also means that more sex crimes occur than would be the case if criminal sanctions were used more effectively to achieve some measure of deterrence. In short, impunity for sex offenders persists in Japan, and prosecutors and PRCs frequently fail to hold them accountable for their crimes.66 Yet there is potential for improvement if prosecutors and PRCs become more inclined to believe victims and more willing to hold sex offenders accountable for their crimes.

Democracy The third and most fundamental frame for thinking about PRCs is democracy, which is also “an essential concept – if not the essential concept – in modern political thought.”67 But in scholarly works “the relationship between prosecutors and democracy is shrouded in confusion, far more so than the relationship between police and democracy.”68 In principle, most people favor “democratic prosecution,” but in practice there are deep disagreements about what this actually means. 65

Fumie Kumagai and Masako Ishii-Kuntz, editors, Family Violence in Japan: A Life Course Perspective (Springer, 2016). 66 See, for example, Ito Shiori, Black Box (Bungei Shunju, 2017), which was translated into English as Black Box: The Memoir That Sparked Japan’s #MeToo Movement (The Feminist Press at CUNY, 2021). The non-prosecution of Itoh’s case is discussed in detail in Chapter 6. 67 Maximo Langer and David Alan Sklansky, “Introduction,” in Maximo Langer and David Alan Sklanky, editors, Prosecutors and Democracy: A Cross-National Study (Cambridge University Press, 2017), p. 8. 68 David Alan Sklansky, “Unpacking the Relationship Between Prosecutors and Democracy in the United States,” in Maximo Langer and David Alan Sklansky, editors, Prosecutors and Democracy: A Cross-National Study (Cambridge University Press, 2017), p. 276.

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There are four common positions about the proper relationship between politics and prosecution.69 Some see politics as the enemy of justice. On this view, external considerations should be irrelevant to charge decisions in individual cases. Others see politics as a substitute for bureaucratic professionalism. Many European countries and Japan and South Korea rely mainly on internal, organizational guidelines and controls to hold prosecutors accountable, whereas the United States relies on the more explicitly political approach of accountability through public elections. Third, politics can be seen as a means of improving prosecution by increasing its transparency. In particular, the collection and reporting of data about how prosecutors’ offices operate should be used to improve their functioning. Finally, politics can empower “community prosecution” (also known as “neighborhood prosecution”). Embedding satellite prosecutors’ offices within particular neighborhoods enables prosecutors to work closely with residents to solve crime and justice problems. These four views are not compatible, for they place conflicting demands on prosecutors. The resulting complexity is one reason why prosecutors should be seen as “mediating figures” who bridge the boundaries between different visions of democracy and who provide flexibility in the face of competing demands that may be irreconcilable.70 Although there is much variation in views about “democratic prosecution,” accountability is a central value in some of them. To be accountable, prosecutors should give an account of their actions and decisions—including their decisions not to charge. But there is also the value of independence, and there are tensions and trade-offs between these two values, for more accountability is often obtained at the price of reduced independence—and vice-versa. Holding prosecutors accountable may reduce their independence. Conversely, securing more independence for prosecutors tends to reduce their responsiveness to external organs of authority, such as courts, legislatures, and the media and public

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David Alan Sklansky, “Unpacking the Relationship Between Prosecutors and Democracy in the United States,” in Maximo Langer and David Alan Sklansky, editors, Prosecutors and Democracy: A Cross-National Study (Cambridge University Press, 2017), pp. 277–283. 70 David Alan Sklansky, “The Nature and Function of Prosecutorial Power,” Journal of Criminal Law & Criminology, Vol. 106 (2017).

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opinion.71 We should also distinguish between the accountability of individual prosecutors and the collective accountability of the prosecutor organization. In Japan as in Germany and some other European nations, individual prosecutors are held accountable primarily through selection and training processes within their organization. These systems have strong forms of internal (bureaucratic) accountability. But externally, the Japanese and German systems have less accountability than American prosecutors’ offices, which depend on the election of district attorneys in most jurisdictions. One challenge for democratic prosecution is how to bring more accountability to prosecutorial decision-making without sacrificing too much independence. Another is how to hold prosecutors accountable while recognizing the complexity and variation in individual cases, the need for discretion, and the need to process large numbers of cases.72 It is hard to generalize about democratic prosecution because there is not one right way for prosecutors to be democratic. There are at least four ways, as follows.73 • Prosecutors can promote representative democracy, by serving as agents of the people. • Prosecutors can promote legal democracy, by being neutral and independent ministers of justice who aim to advance the rule of law. • Prosecutors can promote the values of liberal democracy, such as liberty, equality, and dignity. • Prosecutors can promote participatory democracy, by encouraging and permitting citizens to influence criminal justice decision-making.

71 Jacqueline S. Hodgson, “The Democratic Accountability of Prosecutors in England and Wales and France: Independence, Discretion, and Managerialism,” in Maximo Langer and David Alan Sklansky, editors, Prosecutors and Democracy: A Cross-National Study (Cambridge University Press, 2017), p. 77. 72 Ronald F. Wright and Marc L. Miller, “The Worldwide Accountability Deficit for Prosecutors,” Washington & Lee Law Review, Vol. 67, Issue 4 (2010), p. 1619. 73 Maximo Langer and David Alan Sklansky, “Epilogue: Prosecutors and Democracy—Themes and Counterthemes,” in Maximo Langer and David Alan Sklanky, editors, Prosecutors and Democracy: A Cross-National Study (Cambridge University Press, 2017), pp. 300–338.

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These visions of “democratic prosecution” can be seen in two ways: as emphasizing “different strands of democracy,” which are inextricably bound together; or as “alternative, mutually inconsistent lodestars” which provide different kinds of guidance to the actors and institutions that prosecute.74 And while some of these visions of democratic prosecution are complementary, often they conflict. An independent prosecutor aspiring to advance the rule of law may embody “legal democracy,” but her independence may limit citizen participation in the criminal process. Similarly, prosecutors who see themselves primarily as “agents of the people” must be “servants of the law” in a subordinate sense. Scholarly discussions of prosecution and democracy “have been excessively dominated by a narrow understanding of democracy as a principal-agent relationship in which prosecutors, as representatives of the people, are responsive to their wishes.”75 One aim of this book is to encourage a broader understanding of democratic prosecution. Another is to clarify conceptions of democracy and criminal justice in Japan by considering the various ways in which criminal prosecution can promote and impede democratic values.

Conclusion One large but understudied source of prosecutor power is their authority to withhold criminal charges. In Japan, when there is sufficient evidence to charge and convict, prosecutors withhold charges by “suspending prosecution” (kiso yuyo) about twice as often as they file charges. We know that non-charge decisions can benefit individual offenders and Japanese society in various ways, but little is known about the problems non-charge decisions cause for victims of crime, deterrence, and democratic governance. “Democracy” is interesting and complicated because 74

Maximo Langer and David Alan Sklansky, “Epilogue: Prosecutors and Democracy—Themes and Counterthemes,” in Maximo Langer and David Alan Sklanky, editors, Prosecutors and Democracy: A Cross-National Study (Cambridge University Press, 2017), p. 301. 75 Maximo Langer and David Alan Sklansky, “Epilogue: Prosecutors and Democracy—Themes and Counterthemes,” in Maximo Langer and David Alan Sklanky, editors, Prosecutors and Democracy: A Cross-National Study (Cambridge University Press, 2017), p. 301.

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it has many dimensions76 —and the same can be said about “criminal justice.”77 A country’s commitment to democracy often exists in tension with other values—such as liberalism or rationality—which are also held sacred in that political culture.78 Thus, the central truth about prosecution and democracy may be that difficult trade-offs must be made between competing values. As Isaiah Berlin observed, “What is clear is that values can clash…Some among the Great Goods cannot live together…We are doomed to choose, and every choice may entail an irreparable loss.”79 The rest of this book explores Japan’s effort to help victims, hold offenders accountable, and make prosecution more democratic through the citizen review of non-charge decisions. The next chapter will describe the origins and operations of this unique form of lay participation, which was created during the American occupation to address problems that became all too evident during the “dark valley” (kurai tani) of the Pacific War, when Japan’s government dictated mass conformity and mass mobilization for total war, and when “prosecutor fascism” (kensatsu fassho) was a serious problem. In this sense, the story of Japan’s Prosecution Review Commission is one part of a much larger story about Japan’s democratic transformation.

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Robert A. Dahl, On Democracy (Yale University Press, 1998). Darryl K. Brown, Free Market Criminal Justice: How Democracy and Laissez Faire Undermine the Rule of Law (Oxford, 2016). 78 David Garland, “What’s Wrong with Penal Populism? Politics, the Public, and Criminological Expertise,” Asian Journal of Criminology, Vol. 16 (2021), p. 268. 79 Isaiah Berlin, The Crooked Timber of Humanity (Princeton University Press, 2013). 77

2 PRC Origins and Operations

Chapters 3–5 of this book will analyze the impacts of Prosecution Review Commissions. This chapter provides a historical and procedural foundation for that analysis by describing the origins of the PRC and how it operates. The discussion proceeds in two parts. First I explain how the PRC was created as the result of compromise between American and Japanese officials during the postwar occupation of Japan, and why the original PRC Law of 1948 was revised in 2009 to enable mandatory prosecution in some circumstances. Then I describe how PRCs work and how they differ from grand juries and special prosecutors in the United States.

Origins In 2004 Japan passed two laws—the Lay Judge Law and the revised Prosecution Review Commission Law—aimed at promoting lay participation in the criminal process and improving the quality of Japanese criminal justice and democracy. Both laws took effect in 2009. Much has been © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. T. Johnson, Japan’s Prosecution Review Commission, Palgrave Advances in Criminology and Criminal Justice in Asia, https://doi.org/10.1007/978-3-031-19373-6_2

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written about Japan’s lay judge reform,1 but there has been little serious analysis of Prosecution Review Commissions.2 Previous efforts to create greater lay participation in Japanese criminal justice were often “marginalized by disuse and captured by law specialists.”3 The most notable case was the Jury Act (baishinho) of 1923, which was in effect from 1928 to 1943, and which provided a right to trial by jury for defendants in some criminal cases. In the early years of this period jury trial was a moderately popular choice, with 143 criminal defendants choosing it in the peak year of 1929. But by the early 1940s the popularity of trial by jury had declined to just a handful each year, and in 1943 the Jury Act was suspended as a wartime measure. There are several explanations for the decline of the Japanese jury. Some think the main cause was cultural. On this view, Japanese place much faith in hierarchy and official expertise and therefore prefer to be judged by professionals rather than peers. But this explanation is premised on dubious beliefs about Japan’s “national character.” The prewar jury was not a cultural misfit, and neither was “democracy” more generally. Rather, the jury’s demise was caused by defects in its design. Defendants who chose to be tried by jury gave up their right to appeal findings of fact, thereby foreclosing opportunities to reverse convictions 1 For a summary of research on the impacts of the lay judge reform and other criminal justice changes in Japan, see David T. Johnson and Dimitri Vanoverbeke, “The Limits of Change in Japanese Criminal Justice,” Journal of Japanese Law/Zeitschrift fur Japanisches Recht, Vol. 25, No. 49 (2020), pp. 109–165. 2 In English, the first significant scholarly work on PRCs is Howard Meyers, “The Japanese Inquest of Prosecution,” Harvard Law Review, Vol. 64, No. 1 (December 1950), pp. 279–286. In Japanese, Shinokura Mitsuru’s Kiso Soto [Indictment is Proper] (1988) was reprinted several times (it recounts an incident in Tokushima that was investigated by a PRC). In 1998 the Supreme Court of Japan published a commemorative 50-year history of the PRC (Kensatsu Shinsakai Gojunen-shi). Some of the best recent works on Prosecution Review Commissions were written so soon after the PRC reform took effect in 2009 that there was little data about its impacts for researchers to examine. See, for example, Hiroshi Fukurai, “Japan’s Prosecutorial Review Commissions: Lay Oversight of the Government’s Discretion of Prosecution,” University of Pennsylvania East Asia Law Review, Vol. 6, No. 1 (2011), pp. 1–42; and Carl F. Goodman, “Prosecution Review Commissions, the Public Interest, and the Rights of the Accused: The Need for a ‘Grown-Up’ in the Room,” Washington International Law Journal , Vol. 22, No. 1 (2013), pp. 1–47. 3 Kent Anderson and Mark Nolan, “Lay Participation in the Japanese Justice System: A Few Preliminary Thoughts Regarding the Lay Assessor System (saiban-in seido) from Domestic, Historical, and International Psychological Perspectives,” Vanderbilt Journal of Transnational Law, Vol. 37 (2004), p. 935.

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and reduce sentences. In addition, judges could reject jury verdicts that they did not like, which happened frequently. Most fundamentally, prosecutors and Ministry of Justice officials wanted to marginalize jury trials because trial by jury resulted in acquittal significantly more often than adjudication by professional judges. In the end, suspending the Jury Act in 1943 was simply the culminating step in a long process of dissolution of the jury through disuse.4 From the Meiji Restoration of 1868 until the end of the Pacific War in 1945, Japanese criminal justice was “Janus-faced” in that it functioned with both benevolence and brutality.5 Prosecutors and courts sometimes showed concern for the rights of criminal suspects, but they also abetted the illegal actions of police by looking the other way and they engaged in their own serious acts of misconduct too. After 1925, when the Peace Preservation Law (chian iji ho) was passed and Japan’s government became increasingly fascistic, prosecutors augmented their power and often abused it, by charging their enemies, protecting their friends, and intervening in political affairs. Japan of this period has been called a “paternalistic police state” in which “the repression of political dissent and the pursuit of political dissidents”6 were prominent features. The term “prosecutor fascism” (kensatsu fassho) has been aptly used to describe this period too.7 Following Japan’s defeat in 1945, the American-led occupation tried to “demilitarize and democratize” the country. In some respects it succeeded. Among other major changes, the role of the emperor was greatly limited, land laws and policies were reformed, zaibatsu conglomerates were dissolved, free speech and other civil liberties were guaranteed, and Article 9 of the new constitution forbade the country to maintain an army or go to war again. Much that lies at the heart of 4 David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford University Press, 2002), pp. 42–43. 5 Richard H. Mitchell, Janus-Faced Justice: Political Criminals in Imperial Japan (University of Hawaii Press, 1992), p. xvi. 6 Elise Tipton, Japanese Police State: Tokko in Interwar Japan (University of Hawaii Press, 1990), p. 2. 7 Takaaki Hattori, “The Legal Profession in Japan: Its Historical Development and Present State,” in Arthur Taylor von Mehren, editor, Law in Japan: The Legal Order in a Changing Society (Harvard University Press, 1963), pp. 119–120.

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contemporary Japanese society, including the nature of its democracy and the functioning of its legal system, “derives from the complexity of the interplay between the victors and the vanquished” during the occupation period that ended in 1952.8 While many things changed during this period, there are also many “transwar continuities” that span the prewar and postwar eras, including significant continuities in criminal justice.9 Chief among them is the dominant role that prosecutors continue to play in Japanese criminal justice. Their broad discretion to charge or not charge remains their most important power.10

The PRC Law of 1948 In the wake of the problems described above, occupation officials wanted to “democratize prosecution” (kensatsu no minshuka) in Japan. In some ways the Americans controlled the reform process,11 but ultimately the PRC Law enacted by Japan’s Diet in July 1948 was the product of compromise between American reformers and Japanese elites.12 The Americans put forward two main proposals for prosecution reform. Both were based on prosecution practice in the United States. The first was for a grand jury composed of ordinary citizens who would check the prosecutor’s power to charge. The second was to select local chief prosecutors in public elections, which (some believed) would hold prosecutors accountable for their policies and practices.13 But there was strong Japanese resistance to both of these proposals, as explained by Sato 8 John W. Dower, Embracing Defeat: Japan in the Wake of World War II (W. W. Norton & Company, 1999), p. 28. 9 John W. Dower, “The Useful War,” Daedalus, Vol. 119, No. 3 (Summer 1990), pp. 49–70. 10 David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford University Press, 2002), p. 37. 11 Mark D. West, “Prosecution Review Commissions: Japan’s Answer to the Problem of Prosecutorial Discretion,” Columbia Law Review, Vol. 92, No. 3 (April 1992), p. 695. 12 England’s grand jury was abolished in the same year (1948), though it ceased functioning fifteen years earlier. 13 Alfred C. Oppler, Legal Reform in Occupied Japan (Princeton University Press, 1976).

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Tosuke, the Director General of the Administrative Bureau of Japan’s Ministry of Justice. In January 1949 he described the negotiations with American officials: The Prosecution Review Commission Law was created from scratch (detchiageta) over the course of half a year. In the beginning, American officials insisted that we adopt some system for democratizing prosecution, but I could not come up with any good ideas, so I was hesitant to propose anything concrete. It was then that the Americans confronted us with two specific proposals, both of which seemed problematic to us Japanese. One was to elect chief prosecutors, and the other was to use grand juries for making charging decisions. Both of these proposals were discussed for a long time, but in the end I could not agree with them. I stressed to the Americans that it was difficult [i.e. impossible] to adopt either system in Japan’s present situation.14

Ultimately, Japanese conservatives blocked the American proposal for a system to elect chief prosecutors, though Article 23 of the Public Prosecutor’s Office Law was amended to establish an “examination committee for prosecutor eligibility” (kensatsukan no tekkaku shinsa iinkai ), which would play little role in the years that followed.15 In the same speech Sato reflected on negotiations over the American proposal to create a grand jury that would reflect the will of the people in charging decisions: I had no experience with a grand jury system, though I did have experience with trial by jury. A grand jury system is not well suited to the national character of the Japanese people. In fact, [until the Jury Act was suspended in 1943] judges sometimes thought that jurors lacked common sense and the ability to think for themselves. I believe decisions made by professional judges are more reliable than those made by ordinary citizens. From this perspective, I came to the conclusion that it is not appropriate for Japan to have a body of amateurs decide whether to prosecute. We tried hard to persuade occupation officials of this point,

14 Saikosabansho Jimusokyoku Keijikyoku Kanshu, Kensatsu Shinsakai Gojunenshi (Hosokai, 1998), pp. 163–164. 15 Deguchi Yuichi, “Kensatsu Shinsakai Hoseitei no Keihi,” Hoshakaigaku, No. 72 (2010).

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and eventually the Prosecution Review Commission emerged as an alternative way to reflect public opinion in prosecution practice, instead of a grand jury.

In this way, occupation officials tried to introduce an American-style Grand Jury but had to settle for the PRC because of Japanese objections.16 At the time the PRC was created, no similar system existed anywhere in the world—a distinction which remains true today. In 1949 Sato Tosuke called it “a completely new system.” And more recently, Kobe University Professor of Law Mitsui Makoto called it a “unique system for citizen participation in criminal justice” and University of Michigan Professor of Law Mark West has called it “uniquely Japanese.”17 But if the PRC was a new institution meant to “reflect the will of the people” in prosecution decisions, it was also a conservative one, in two ways. First, a PRC could only review non-charge decisions. In contrast to the American grand jury, which was designed to check the prosecutor’s affirmative power to charge, the primary function of the Japanese PRC is to check non-charge decisions and (when appropriate) to push for more prosecutions. Second, from 1948 until the “mandatory prosecution” (kyosei kiso) reform that took effect in 2009, the PRC could only make recommendations to prosecutors about their non-charge decisions. That is, the PRC decisions were advisory, not binding. Prosecutors could disregard them, and in the decades that followed they often did. Until 2009, some PRCs were so frustrated with the limits on their influence that they made “proposals and recommendations” (kengi-kankoku) to chief prosecutors (kenjisei) asking that more respect be given to their decisions.18 In 2005, for example, a PRC in Tokyo said “we feel prosecutors seldom change their non-charge decisions in response to PRC review,” and “when a PRC’s decision is not respected, it is an act contrary to 16

Alfred C. Oppler, Legal Reform in Occupied Japan (Princeton University Press, 1976), pp. 104–106. 17 Mitsui Makoto, “Kensatsu Shinsakai Seido no Kongo,” Gendai Keijiho, No. 69 (2005), p. 82; and Mark D. West, “Prosecution Review Commissions: Japan’s Answer to the Problem of Prosecutorial Discretion,” Columbia Law Review, Vol. 92 (1992), p. 694. 18 Ihara Sakura, “Kensatsu Shinsain no Keiken to Teigen,” Horitsu Jiho, Vol. 50, No. 9 (1978), pp. 60–61.

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the principle of popular sovereignty that is fundamental to our constitutional order.” The Japan Federation of Bar Associations expressed similar concerns,19 but the premise of “state prosecution” (kokka sotsui shugi) remained strong in Japan, as it is in many other countries. The law that conferred power on PRCs to institute mandatory prosecution was not enacted until 2004 (and was not promulgated until 2009). The next section explains how that happened.

The PRC Reform of 2009 Rules are the product of someone’s initiative, and one can think of the people and institutions who exhibit that initiative as “moral entrepreneurs.”20 The mandatory prosecution reform of 2004 resulted from the advocacy of moral entrepreneurs who had long been pushing for more citizen participation in Japanese criminal justice. The most influential push came from the Japan Federation of Bar Associations (JFBA) and some of its members, including a lawyer and law professor named Shinomiya Satoru, who lobbied skillfully and relentlessly for the PRC reform and for other injections of lay participation into Japanese criminal justice. In a 1975 report, the JFBA recommended that some PRC decisions be made binding on prosecutors. That reform attempt failed, as did several subsequent efforts to strengthen checks on prosecutors’ power.21 There was much resistance from prosecutors, who did not want their powers curbed, and the most common objection in academia was that binding PRC verdicts may result in more innocent suspects being charged. The stigma of criminality is large in Japan, and critics claimed that an increase in the number of charges would not justify

19

Fujimoto Masashi, “Kensatsu Shinsakai no Seido teki Kaisei to Nichibenren Ikensho Kosokuryoku Fuyo o Chushin toshite,” Horitsu Jiho, Vol. 50, No. 9 (1978). 20 Howard S. Becker, Outsiders: Studies in the Sociology of Deviance (The Free Press, 1963), pp. 147–163. 21 Hiroshi Fukurai, “People’s Panels vs. Imperial Hegemony: Japan’s Twin Lay Justice Systems and the Future of American Military Bases in Japan,” Asian-Pacific Law & Policy Journal , Vol. 12, No. 1 (2010), pp. 95–142.

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the increased risk to suspects who are innocent.22 For these reasons, some analysts argued that instead of making PRC decisions binding, the “social checking” effect of PRC review should be amplified, mainly by “increasing publicity” about its mission and effects.23 But that did not happen. In 2004, the PRC Law was finally reformed because of the confluence of three social forces: a victims’ rights movement that aimed to make Japanese criminal justice more responsive to the needs and rights of victims; a justice system reform movement that tried to make Japanese criminal justice more reflective of the sensibilities of ordinary citizens; and a scandal involving a prosecutor in Fukuoka who leaked information to a judge in an attempt to avoid the indictment of the judge’s wife for stalking. First, reform of the PRC Law grew out of Japan’s victims’ rights movement, which accelerated in the 1990s. As explained in Chapter 1, this movement made Japanese criminal justice somewhat more punitive. In this sense, the mandatory prosecution reform rode a larger wave of criminal justice reform that was partly driven by “penal populism.”24 The PRC Law was also amended in 2000, and for similar reasons. That reform enabled spouses, direct relatives, and siblings to file a complaint with a PRC if the victim of a crime had died. Prior to this change, a bereaved family could not request PRC review, which prompted some PRCs to initiate their own “ex-officio” (shokken) review (see Chapter 3). Second, reform of the PRC was linked to a broader “justice system reform movement” (shiho kaikaku undo) that gained momentum in the late 1990s when the influential Japan Business Federation (Keidanren) presented the ruling Liberal Democratic Party with an ambitious proposal for legal reform. JBF pushed for reform because many business leaders believed they needed a more responsive court system and a more vigorous legal profession to handle business-related cases. During 22

Marcia E. Goodman, “The Exercise and Control of Prosecutorial Discretion in Japan,” UCLA Pacific Basin Law Journal , Vol. 5 (1986), pp. 16–95. 23 Mark D. West, “Prosecution Review Commissions: Japan’s Answer to the Problem of Prosecutorial Discretion,” Columbia Law Review, Vol. 92, No. 3 (April 1992), p. 719. 24 Setsuo Miyazawa, “The Politics of Increasing Punitiveness and the Rising Populism in Japanese Criminal Justice Policy,” Punishment & Society, Vol. 10, Issue 1 (2008), pp. 47–77.

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the first several decades of the postwar period business interests had been protected and promoted by Japan’s powerful bureaucracy, but this favorable treatment declined in the neoliberal age of deregulation and globalization. The JBF push prompted the LDP to put “justice system reform” on the national agenda, and this created openings for change that various reformers tried to exploit.25 One proposal was criminal trial by jury or by a mixed panel of professional judges and lay assessors, while another said “a system should be introduced that grants legally binding effect” to some PRC decisions. As the Justice System Reform Council explained in its final (2001) recommendations: The monopolization of prosecutions by public prosecutors and the granting of discretion over indictments to public prosecutors is necessary to ensure uniform and fair exercise of the public prosecution authority nationwide, and to enable concretely reasonable dispositions according to the circumstances of each individual suspect. Hereinafter, even more appropriate operation of the system is expected in order to meet the expectations and achieve the trust of the people. At the same time, it is important to more directly reflect public opinion in the exercise of the public prosecution authority. The Inquest of Prosecution [PRC] system was established to reflect public opinion in the exercise of the public prosecution authority in order to secure its fairness (the members of the Inquest are selected from the voters by lot) and has great significance as a part of the system of popular participation in the justice system. Although this system has been criticized on various grounds, it has played a considerable role. While paying attention to the guarantee of the due process of law for suspects, a system should be introduced that grants legally binding effect to certain resolutions of the Inquests of Prosecution in order to further expand the role of those Inquests, after thoroughly considering the structure, authority and procedures of the Inquests of Prosecution, as

25

David T. Johnson and Setsuo Miyazawa, “Japanese Court Reform on Trial,” in Rosann Greenspan, Hadar Aviram, and Jonathan Simon, editors, The Legal Process and the Promise of Justice: Studies Inspired by the Work of Malcolm Feeley (Cambridge University Press, 2019), pp. 122–138.

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well as who files the indictments and conducts the prosecution at trial. (emphases added)26

In 2004, three years after these recommendations were made, the PRC Law was amended, but that reform probably would not have occurred but for a scandal that sullied prosecutors’ reputation.27 The scandal broke in 2000 when the deputy chief prosecutor (jiseki kenji) of the Fukuoka District Prosecutors Office leaked information to a High Court judge, apparently in an effort to enable the judge’s wife to avoid prosecution for threatening to kill a woman she believed was having a relationship with her former boyfriend.28 The stalking by the judge’s wife included email messages that said “I will kill you,” “Beware when you walk at night,” and “You and your family will perish in a fire in your home.” She also made harassing phone calls to the victim’s company and scattered leaflets in the elementary school attended by the victim’s daughter. The leaflets said, “[Victim’s name] loves H. She is good at sleeping with other children’s dads.”29 The deputy chief prosecutor of Fukuoka informed the High Court judge that a police investigation of the judge’s wife was in progress, and he introduced a lawyer to the judge so that a settlement (jidan) could be reached between the two women. The media also reported that the prosecutor leaked information to the judge that impeded the police investigation. Police did not seize a prepaid mobile phone used by the judge’s wife, and the communication log on her personal computer was erased. This scandal became big news, and the deputy chief prosecutor was investigated. Ultimately, prosecutors concluded there was “insufficient evidence” (kengi fujubun) to charge him with violating 26

Justice System Reform Council, “Recommendations of the Justice System Reform Council— For a Justice System to Support Japan in the 21st Century,” June 12, 2001, pp. 1–90, at https://japan.kantei.go.jp/policy/sihou/singikai/index_e.html. 27 On the conditions under which scandal results in significant reform, see Lawrence W. Sherman, Scandal and Reform: Controlling Police Corruption (University of California Press, 1978). 28 In Japan, being judge on a High Court is high status, as there are only eight of these appellate courts in the country. Being deputy chief prosecutor (jiseki kenji) in Fukuoka is high status too, for this is the second highest position in that District Prosecutors Office, where dozens of prosecutors work. 29 Japan Times, “Prosecutor Leaked Info on Probe of Judge’s Wife,” February 3, 2001.

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the confidentiality obligation of the National Civil Service Law (kokka komuinho). In response to this decision, a PRC in Fukuoka initiated its own “ex-officio” (shokken) review of the case and eventually concluded that “non-prosecution is not appropriate” (fukiso futo), thereby urging prosecutors to investigate further. But the deputy chief prosecutor was never charged, though he did resign from his job after learning that he would be suspended for six months. The High Court judge also resigned from the bench after the Supreme Court concluded that he had exceeded the proper limits of what a judge may do in defense and support of a spouse—and after he narrowly escaped impeachment by the Diet’s Judicial Indictment Committee (the vote was 7-7). In January 2001, the judge’s wife was arrested and charged with extortion, burglary, defamation, property damage, and obstruction of business by fraudulent means. In December of the same year she was convicted and sentenced to 2 years imprisonment with labor.30 This scandal in Fukuoka damaged public trust in prosecutors nationwide. In 2000, in the 51st meeting of the Justice System Reform Council, an executive prosecutor named Tadaki Keiichi spoke at length about the case. Tadaki would later become Prosecutor General (kenji socho)—Japan’s top prosecutor—and he was one of the most influential figures in the justice system reform movement. When he spoke in 2000 as Chief of the Secretariat (kanbocho) of the Ministry of Justice, he stressed that the Fukuoka case “should be regarded as a problem for the prosecution as a whole.” His critique came in four parts, and it was expressed with a candor that is seldom heard when prosecutors speak of misconduct in their ranks. First of all, because prosecutors sit in a position of authority, they tend to lack a sense of citizenship (shimin kankaku). To address this problem, it is necessary to create places where prosecutors can learn a sense of citizenship… I believe more than half of all prosecutors should be sent to work in lawyers offices, where they can learn a sense of citizenship while practicing law.

30

For the Fukuoka District Court’s decision in this case, see https://www.courts.go.jp/app/files/ hanrei_jp/217/008217_hanrei.pdf.

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A second imperative is to thoroughly educate prosecutors, including executive prosecutors, in the fundamentals of their profession (kensatsukan no kihon teki arikata). Prosecutors should be consulting with victims and investigators, and they should be receiving instruction from these people too. And prosecutors should be discussing these matters among themselves…The problem in this [Fukuoka] case occurred because of the great authority that prosecutors possess and the broad discretion they have not to charge cases. When the prosecutors who exercise discretion do so unfairly, it is truly unbearable for the people. I believe the deep anger people feel about this case comes from such a place. In this sense, prosecutors must be humble and should try to cultivate an attitude of humility. We must create prosecutors who are both humble about the truth and humble toward other people. Third, personnel exchanges between the judiciary and the procuracy are often criticized for making this relationship too chummy and collegial . The solution is not to completely forbid such exchanges, but the current system of exchange is clearly biased in one direction, with judges often becoming prosecutors but prosecutors seldom becoming judges. This is badly out of balance, and it results in a lack of appropriate tension in the relationship between prosecutors and judges. In the future, more varied personnel exchanges should be encouraged, not just from judge to prosecutor but also from lawyer to prosecutor, prosecutor to lawyer, and prosecutor to judge.31 My fourth and final point is that currently our courts can criticize cases that have been charged, yet there is no judicial control over uncharged cases.32 To strengthen the PRC, it seems necessary for it to receive direct 31 The problem of friendliness between prosecutors and judges also occurs in the United States. As Amy Bach observes in Ordinary Injustice: How America Holds Court (Metropolitan Books, 2009, p. 6), “Collegiality and collaboration are considered the keys to success in most communal ventures, but in the practice of criminal injustice they are in fact the cause of system failure. When professional alliances trump adversarialism, ordinary injustice predominates.” 32 Tadaki’s statement to the contrary notwithstanding, Japanese courts have occasionally ruled that criminal charges against a defendant should be dismissed because the state did not prosecute “similarly situated offenders,” thereby resulting in “abuse of prosecutorial discretion.” In 1977, for example, the Tokyo High Court reached this conclusion in Japan v. Kawamoto (a Minamata disease case). The Hiroshima High Court reached the same conclusion in 1980 when it held in Japan v. Fukumoto that if the state did not prosecute a political candidate who bought votes, then it could not prosecute his agents and relatives. See Mark D. West, “Prosecution Review Commissions: Japan’s Answer to the Problem of Prosecutorial Discretion,” Columbia Law Review, Vol. 92, No. 3 (April 1992), p. 692; and Marcia E. Goodman, “The Exercise and Control of Prosecutorial Discretion in Japan,” UCLA Pacific Basin Law Journal , Vol. 5 (1986),

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supervision from the public. In this sense, I think it is necessary to give legally binding force (ho teki kosokuryoku) to certain PRC decisions. At the same time, the existing system for PRCs to make recommendations and proposals (kengi-kankoku) to chief prosecutors needs to be strengthened, so that when a PRC recommendation or proposal is made, prosecutors are required to provide a timely response. We should consider implementing a system in which proposals and recommendations, as well as prosecutors’ responses to them, must be made public, unless there are good reasons to keep this information confidential. At this critical time in the justice system reform process, we prosecutors sincerely apologize for causing such a big problem, which has resulted in the loss of public trust in the justice system and in a great deal of trouble for the Justice System Reform Council.33

Tadaki’s rebuke of his fellow prosecutors and of the systems for overseeing criminal prosecution not only summarizes some of the most salient effects of the Fukuoka scandal, it also influenced debate over revision of the PRC Law. In the end, the PRC Law was amended in 2004 and promulgated five years later so that as of 2009, PRCs could institute “mandatory prosecution” (kyosei kiso) in some circumstances. As Tadaki urged, the reform also requires prosecutors to notify a PRC of the measures it has taken in response to general “recommendations and proposals” (kengi-kankoku) issued by that PRC. These were the biggest changes in the Japanese law of prosecution since the occupation.34 pp. 16–95. On appeal, both of these High Court decisions were overruled by Japan’s Supreme Court, but judicial sanctions remain a possibility for “abuse of prosecutorial discretion,” as was noted in 2020 when many observers criticized prosecutors for not charging some 100 local politicians and support group members in Hiroshima for taking payments from former Minister of Justice Kawai Katsuyuki and his wife Kawai Anri, who won her Diet seat in the Upper House Election of 2019. See Asahi Shimbun/Asia & Japan Watch, “Experts Criticize Decision Not to Indict Recipients of Kawais’ Cash,” July 9, 2020. As explained in Chapter 1, both Kawais were charged and convicted, and about one-third of those local politicians were charged after a PRC kicked back uncharged cases to prosecutors. See The Mainichi, “Prosecutors to Indict 34 Local Politicians, Others in Hiroshima Vote-Buying Scandal,” March 7, 2022. 33 Tadaki Keiichi, quoted in David T. Johnson et al., Kensatsu Shinsakai: Nihon no Keiji Shiho o Kaeru ka (Iwanami Shinsho, 2022), pp. 58–61. 34 Some observers believed the PRC reforms of 2004 would be surpassed in significance by a law passed in 2018 that enabled Japanese prosecutors to plea bargain in a limited range of cases, but the first several years under that law resulted in little use of it and great controversy. See Ibusuki Makoto, “Nihongata Shiho Torihiki Seido no Gaiyo to Nissan Jidosha Jiken kara

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Operations As of 2022, there are 165 PRCs in Japan, each of which corresponds to a District Court or a branch court. Each PRC is composed of eleven persons randomly chosen from voter rolls, all of whom serve a sixmonth term. Half or so of each commission is selected every three months, and members cannot serve consecutive terms. Hence, when a PRC reviews a case for the second time, its composition often differs from the PRC that performed the initial review. PRC meetings are held quarterly or on call of the chairperson of each commission, but in busy jurisdictions they convene more often (weekly or biweekly). By law, some citizens (including ex-convicts, politicians, and many legal professionals) are excluded from serving as PRC members. The leadership of each PRC combines lay and official influence. A chairperson is elected by the members of each PRC. (In criminal trials, a lay judge panel is led by the chief judge of the courtroom.) But practically, PRCs are administered by a government entity known as the Prosecution Review Commission Office (kensatsu shinsakai jimukyoku), which is staffed by court clerks and assistants (shokuin, shokikan, and jimukan). PRCs rely on these government officials for the information, expertise, and assistance that they need. As one PRC member observed, “We cannot help but depend on the PRC Office. We [PRC members] receive explanations about past cases from a PRC Office clerk, and a clerk also drafts our disposition statements (giketsusho).”35 In addition, the PRC Office controls the lottery process for selecting PRC members; district-level judges and prosecutors can attend, but attorneys cannot. The language of the PRC Law seems to allow for little discretion in this process, but it is not transparent, and neither are PRC Offices.36

Mita Unyojo no Mondaiten,” Bujinesu Homu, July 2020, pp. 141–146; and Ohno Kotaro, “Kigyo to Shiho Torihiki,” International Civil and Commercial Law Center News, Vol. 70 (May 2020), pp. 3–23. 35 Asahi Shimbun, “Ozawa Kensatsu Shinsakai no ‘Yami’: Kokuhatsusha wa? Shinsain Heikin Nenrei 30.9sai wa Naze?… Kensatsu Soranzai,” October 22, 2010, p. 27. 36 Hiroshi Fukurai, the author of several articles on PRCs, tried to do research about PRCO personnel in Yokohama, but his requests for interviews were refused (email to the author, July 21, 2021).

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The practical dependence of PRCs on the PRC Office shapes PRC actions and decisions, though it is hard to say how. The most potentially problematic influences probably occur when setting the PRC’s agenda, advising the PRC about past precedents, and drafting the PRC’s disposition statements. In the age of mandatory prosecution, the PRC Office may also be nudging PRCs in subtle ways to reach “non-indictment is not proper” (fukiso futo) instead of “indictment is proper” (kiso soto) decisions because the former takes the possibility of forcible indictment off the table. There is no solid evidence to support these hunches, but some legal professionals believe the problems are significant. The extent of influence by a PRC Office probably also depends on the particular mixture of attitudes and personalities of each PRC panel. Still, compared to the interactions between lay judges and judges in criminal trials, which has been a topic of frequent discussion and some research, little is known about this critical interface, and more research is needed.37 In most PRC reviews, PRC Office personnel act as informal legal advisors. But there are also more formal legal advisors or “examination assistants” (shinsa hojoin), who can advise a PRC on a voluntary basis in an initial case review, and who are required to be present when a PRC reviews a case for the second time.38 The use of these legal advisors is rare but increasing. Between 2015 and 2018 they were involved in only 1.6% of the cases filed with PRCs, but by 2019 the figure had increased to 8.2%, largely because the Japan Federation of Bar Associations has tried to raise awareness of this important function. Legal advisors do three main things: they explain and interpret laws and ordinances; they organize facts, evidence, and legal problems related to a case; and they provide the legal advice that PRCs need to review a case appropriately.39 The provision of these services is a delicate issue. Some observers worry that 37

Hiroshi Fukurai, “A Step in the Right Direction for Japan’s Judicial Reform: Impact of the Justice System Reform Council Recommendations on Criminal Justice and Citizen Participation in Criminal, Civil, and Administrative Litigation,” Hastings International and Comparative Law Review, Vol. 36, No. 2 (2013), pp. 517–567. 38 Akamatsu Norio, “Shinsa Hojoin no Keiken kara Kongo o Kangaeru,” Jiyu to Seigi, Vol. 67, No. 12 (2016), pp. 49–52. 39 Nishimura Takeshi, “Significance and Some Issues of Japan’s Prosecution Review Commission,” Paper Presented at the Annual Meeting of the Asian Law & Society Association, Osaka, December 13, 2019.

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this kind of professional input will alter citizen sensibilities and undermine the commission’s autonomy. This is a legitimate concern. But legal advisors also help to check the influence of government officials in the PRC Office and thereby help guard the PRC’s independence. Obtaining access is a challenge, but more research is needed on this subject too.40 PRCs receive the large majority of their complaints from crime victims who are dissatisfied with a decision not to charge. Through a majority vote of its members, a PRC can also decide to investigate a non-charge decision on its own, without receiving a complaint. This is called exofficio (shokken) review. In recent years more than 90% of PRC cases start with a complaint from a victim or victim’s proxy. Of course, it is sometimes unclear who the victim of a crime is. If a person is murdered or raped the victim is usually easy to identify, but if (say) a politician is suspected of violating the Political Funds Control Law (which was the single most common complaint PRCs received between 1949 and 2009), the number of victims may be large and the case could be subject to simultaneous review before different PRC panels. As explained in Chapter 4, this is what happened in the case of Ozawa Ichiro, who was forcibly indicted in 2011 and eventually acquitted. Compared to their counterparts in other developed democracies, Japanese prosecutors are generally cautious about charging.41 Only 30% of all crimes in which police have identified a suspect get charged, of which one-third or so receive a public trial while two-thirds are summarily prosecuted through what is mainly a paper process. More than half of cases with sufficient evidence to charge result in the noncharge disposition known as “suspended prosecution” (kiso yuyo). With few exceptions, a Japanese prosecutor decides to charge when two conditions coincide: the prosecutor feels all but certain the case will result in conviction (this is largely an assessment of evidence), and the prosecutor believes indictment is appropriate, which involves pragmatic considerations (such as personal consequences for the suspect and policy 40 There is a manual for legal advisors and designated attorneys; see Japan Federation of Bar Associations, “Kensatsu Shinsakaiho ni okeru Shinsa Hojoin - Shitei Bengoshi no tame no Manyuaru” (2017). 41 David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford, 2002), pp. 214–242.

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consequences for society), and which can involve political calculations as well.42 A PRC examines each case in private, by questioning prosecutors, summoning witnesses, and receiving legal advice. Ultimately, a PRC arrives at one of three decisions, which is presented to prosecutors in writing. The first and by far the most common disposition is that “nonindictment is proper” (fukiso soto). This conclusion essentially means “you did the right thing by not charging the case.” In the 70-year period from 1949 to 2019, 85% of PRC dispositions were in this category. The second PRC disposition is that “non-indictment is improper” (fukiso futo), which means prosecutors should reinvestigate the case and reconsider their decision not to charge. Since 1949, approximately 13% of PRC decisions have been of this type. The third and least common disposition is that “indictment is proper” (kiso soto), which essentially is a declaration that prosecutors have made a mistake: they did the wrong thing by not charging, and they should file charges now. Since 1949, only 2% of all PRC decisions were of this kind. For the first two of these PRC dispositions, a simple majority vote of 6–5 is required, but for the third disposition (“indictment is proper”) a supermajority of eight or more votes is necessary. Most PRC resolutions (giketsusho) do not report the actual vote totals. Until the reformed PRC Law took effect in 2009, its recommendations to prosecutors were merely advisory. Hence, prosecutors could reject or ignore a PRC’s recommendations—and often they did. In the first 40 years of the PRC’s existence, from 1949 to 1989, commissions disposed of an average of 1930 cases each year, which is an average of 35 suspects for every 10,000 not indicted, or one PRC review for every 290 non-charge decisions. (In the peak years of PRC activity, from 1981 to 1987, the review rate doubled, but it was still just one PRC review for every 145 non-charge decisions.) Over the same 40-year period, only 6.8% of all PRC dispositions recommended prosecution, either softly (“non-indictment is not appropriate”) or strongly (“indictment is appropriate”). Approximately 20% of these recommendations 42

On how prosecutors “have long played politics in seeking their own goals,” see Masato Shimizu, “Japanese Prosecutors and Politicians Keep Up a Delicate Dance,” May 30, 2020, at https://asia.nikkei.com/Politics/Japanese-prosecutors-and-politicians-keep-up-a-delicate-dance.

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resulted in prosecutors changing a non-charge decision to charge. Thus, during the first four decades of this lay institution’s existence, PRCs reviewed relatively few cases, and only 1.4% of all the cases they reviewed resulted in an altered outcome. For these reasons, the PRC has been called an “obscure” and “underutilized” feature of Japanese criminal justice.43 Chapter 3 will complicate this perception by describing the various impacts that PRCs have had. The evidence shows that they are more significant than is commonly supposed. How do PRCs operate after the mandatory prosecution reform? As depicted in Fig. 2.1, under the revised PRC Law, a PRC decision becomes binding if the PRC recommends prosecution twice. At stage one, if prosecutors decide not to indict and then the PRC concludes that “indictment is proper” (kiso soto), prosecutors must reconsider their original decision. If prosecutors then decide for a second time not to indict (or if they do not indict within three months), they must explain their decision to the PRC. The PRC then reviews the case again, and if it decides once more that “indictment is proper,” its decision becomes binding. Charges that result from this two-step process are called “mandatory prosecutions” or “forcible indictments” (kyosei kiso), and they are discussed in detail in Chapter 4. In the first 12 years under the revised PRC law, from May 2009 to May 2021, there were 10 cases of mandatory prosecution involving a total of 14 defendants. Only two of the defendants were found guilty at trial, for a conviction rate of 14% in mandatory prosecution cases. When a case is subject to mandatory prosecution, a “designated attorney” (shitei bengoshi) plays the prosecutor’s role at trial and in the pretrial process. The designated prosecutor (as he or she is also called) is appointed by the court from the ranks of private attorneys, though the bar association has a significant say in what names are put forward to play this role. In complicated cases such as the TEPCO trial (see Chapter 5), there is more than one designated prosecutor. In most cases it is necessary for the designated prosecutor to carry out a supplemental investigation in order to maintain the indictment, because public prosecutors originally 43

Mark D. West, “Prosecution Review Commissions: Japan’s Answer to the Problem of Prosecutorial Discretion,” Columbia Law Review, Vol. 92, No. 3 (April 1992), pp. 698, 702.

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Prosecutors decide not to indict a case ↓

Notify victims or those who filed an accusation ↓

Victims or those who filed accusation ask PRC to review the case, or PRC can start review on its own initiative ↓ 1st Review of the case by PRC

1. “Indictment is Proper” need 8/11 votes

2. “Non-Indictment is improper” need 6/11 votes

3. “Non-Indictment is proper” need 6/11 votes

No more PRC Involvement Prrosecutors have to review the case again

. Prosecutors decide not to indict the case again,, or PRC hears nothing from prosecutors for 3 months

2nd Review of the Case by PRC

The Case closes, or victims ask the PRC to review the case again

Legal advisor (lawyer) must attend

1. Vote that the case should be indicted by 8/11 or more

Prosecutors Change Their Opinion and Indict the Case

2. Not enough votes to request that the case be indicted

Mandatory Prosecution (kyosei kiso) *After mandatory prosecution, a “designated attorney” (shitei bengoshi) is appointed by the court to perform the prosecutor role.

Fig. 2.1 Japan’s Prosecution Review Commission after the 2009 reform

made a non-charge decision. In that investigation, the designated prosecutor usually interviews the suspect and witnesses, but search and seizure are rarely employed because under current law these coercive practices must be conducted by public prosecutors or judicial police officers.44 The Japanese bar is lobbying to change this system so that designated 44

Yasuhara Hiroshi, Nakagawa Kanta, and Hasebe Shin-ichi, “Kyosei Kiso Jiken Shitei Bengoshi no Jitsumu Keiken,” Jiyu to Seigi, Vol. 67, No. 12 (2016), pp. 53–59.

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prosecutors are empowered to directly command prosecution assistants (kensatsu jimukan) and judicial police officers to perform these critical functions. The bar is also lobbying to raise the pay for designated prosecutors. In the TEPCO case, each of several designated prosecutors was paid less than 1 million yen ($10,000) a year, which is hardly a strong incentive to work hard in this role (or to volunteer for it in the first place). The bar has raised similar concerns about the payment of legal advisors, who are compensated only for their time in attendance at PRC meetings, and whose pay is capped at 30,700 yen (about $300) per day.45 Finally, the PRC review process raises questions about the proper standard of proof for indictment. Japanese prosecutors tend to follow the principle that criminal charges should be based on precise evidence and should only be instituted when a criminal conviction is all but assured. Should the PRC employ the same high standard, or should it be relaxed? There are two common (and contrasting) answers to this question. Some believe the standard of proof for indictment should be the same as that employed by public prosecutors because indictment is itself a serious burden for the accused, and because it is important to maintain consistency in prosecution policy. Most prosecutors seem to take this position, as do people who are more concerned about the problem of over-prosecution than the problem of under-prosecution. But the contrasting view holds that the standard of proof for a PRC to recommend or mandate prosecution should be lower than the standard public prosecutors use, because that will enable the prosecution of crimes that are currently under-prosecuted and therefore will better serve the interests of victims and deterrence that were discussed in Chapter 1. On this view, the PRC’s role is to reflect the common sense of ordinary citizens. To proceed from the premise that prosecutors’ conservative charging standard is correct is to contradict the purpose of citizen oversight and input. There is no objectively “right” answer to the question about the standard of proof for indictment, just as there is no objectively right answer to the question of how to balance the imperatives of

45

Nishimura Takeshi, “Significance and Some Issues of Japan’s Prosecution Review Commission,” Paper Presented at the Annual Meeting of the Asian Law & Society Association, Osaka, December 13, 2019.

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crime control and due process in criminal justice policymaking.46 The tension between these competing views is a recurrent theme in PRC decision-making and in discussions of the PRC review process.47

A Japanese Grand Jury? The PRC is sometimes called a “Japanese Grand Jury,” and there are similarities between the two institutions. In particular, both rely on citizen oversight to prevent abuses of prosecutorial power, and both influence prosecutors’ decision-making. But there are so many major “dissimilarities in function”48 between these two institutions that to equate the PRC with the American Grand Jury is to turn the Grand Jury on its head.49 The Fifth Amendment of the U.S. Constitution states in part that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” In the U.S. federal system this means that each person accused of a capital or felony offense is entitled to have a Grand Jury review both the sufficiency of evidence provided by the prosecutor and the prosecutor’s judgment that criminal charges should be filed. At the state level different standards apply. In some states indictment by Grand Jury is required for all serious (felony) crimes, while in others indictment by Grand Jury is only required in capital cases. The size of a Grand Jury also varies by location; it typically consists of 16 to 23 citizens. In all American jurisdictions, the Grand Jury is not required to indict even if the prosecution presents 46

Herbert L. Packer, The Limits of the Criminal Sanction (Stanford University Press, 1968), pp. 149–173. 47 Kawasaki Hideaki, “Kensatsu Shinsakai wa Harikirisugi ka,” in Ibusuki Makoto et al., editors, Keiji Shiho o Ninau Hitobito (Volume 3 in the series Keiji Shiho o Kangaeru, Iwanami Shoten, 2017), pp. 118–136; and Nishimura Takeshi, “Significance and Some Issues of Japan’s Prosecution Review Commission,” Paper Presented at the Annual Meeting of the Asian Law & Society Association, Osaka, December 13, 2019. 48 Mark D. West, “Prosecution Review Commissions: Japan’s Answer to the Problem of Prosecutorial Discretion,” Columbia Law Review, Vol. 92, No. 3 (April 1992), p. 696. 49 This section relies on two insightful articles by Carl F. Goodman: “Prosecution Review Commissions, the Public Interest, and the Rights of the Accused: The Need for a ‘Grown-Up’ in the Room,” Washington International Law Journal , Vol. 22, No. 1 (2013), pp. 1–47; and “The Prosecution Review Commission Process—Historical Analysis and Some Suggestions for Change,” Hastings Journal of Crime and Punishment, Vol. 1, No. 3 (2020), pp. 367–394.

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sufficient evidence to establish “probable cause,” which is the legal standard that must be met for a Grand Jury to issue an indictment. In this sense American Grand Juries have the power to “suspend prosecution,” much as Japanese prosecutors do. Historically, the Anglo-American Grand Jury functioned as a shield to protect citizens against the awesome power of the state to impose criminal sanctions. In English common law, for example, Grand Juries often refused to indict enemies of the king, while in colonial America three successive Grand Juries famously refused to indict John Peter Zenger, whose newspaper had criticized the crown’s withdrawal of jury trials and its control over the colony of New York. In these ways, the Grand Jury functioned as a buffer between the government and the people, screening official decisions to file criminal charges by applying the common sense of the community. At the same time, the American Grand Jury has long been empowered to perform investigative functions, to issue subpoenas, and to file reports about a case or a problem. Over time, the American Grand Jury has become less of a shield between citizens and government and more of a tool that prosecutors use to justify criminal charges. The American prosecutor controls all Grand Jury proceedings; there is not even a judge or defense lawyer present during its hearings. Today, Grand Juries do the state’s bidding so routinely that it is often said a prosecutor can get one to do almost anything—even “indict a ham sandwich.”50 Moreover, if a prosecutor is unsuccessful before one Grand Jury, he or she can empanel another one to seek the same indictment. Former Louisiana state governor Edwin Edwards was investigated by more than 20 Grand Juries before he was finally charged (in 1998), convicted, and sentenced to 10 years in federal prison for racketeering, extortion, money laundering, mail fraud, and wire fraud.51 Similarly, if an American prosecutor is unsuccessful before a Grand Jury, he can file criminal charges by convincing a judge of “probable cause” in a “preliminary hearing.”52 In short, the American 50

David Heilbroner, Rough Justice: Days and Nights of a Young D.A. (Dell, 1990), p. 245. Robert D. McFadden, “Edwin Edwards, Flamboyant Louisiana Governor, Is Dead at 93,” New York Times, July 12, 2021. 52 Peter Boylan, “Judge Denies Motion to Dismiss Charges Against 3 Honolulu Police Officers in Fatal Shooting of Teen,” Honolulu Star-Advertiser, July 21, 2021, p. A1; and Christina Jedra, 51

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Grand Jury does a lot less to check the prosecutor’s power to charge than American mythology claims.53 Finally, while a Grand Jury can refuse to indict even if there is sufficient evidence to establish probable cause, it cannot force a prosecutor to indict, for a Grand Jury cannot issue an indictment without a prosecutor’s approval—usually in the form of a signature. Hence, a prosecutor can block a Grand Jury just as a Grand Jury can block a prosecutor. In this reciprocal sense, the prosecutor and the Grand Jury “act as a check on each other.”54 In sum, the American Grand Jury and the Japanese PRC differ greatly in function, with the Grand Jury reviewing prosecutor’s charge decisions before an indictment is issued and the PRC reviewing prosecutors’ non-charge decisions after they have been made. In most countries noncharge decisions are seldom the subject of discussion or disapproval, not least because the media and public rarely learn much about them. In Japan, however, the possibility of review by a PRC means prosecutors know that a decision not to charge could be reviewed and (as of 2009) reversed. In this sense, the mandatory prosecution reform means prosecutors in Japan no longer possess monopoly power over the decision to file criminal charges. It also must be stressed: the Grand Jury was designed to restrain the state’s power to charge while the PRC was designed to produce more criminal charges. This is the most critical distinction between these two very different forms of citizen review of prosecutorial decision-making.

“Honolulu Officers Will Not Be Tried in Sykap Killing, Judge Rules,” Civil Beat, August 18, 2021. 53 Roger A. Fairfax Jr., “Grand Jury Discretion and Constitutional Design,” Cornell Law Review, Vol. 93, Issue 4 (May 2008), pp. 703–763. 54 Carl F. Goodman, “Prosecution Review Commissions, the Public Interest, and the Rights of the Accused: The Need for a ‘Grown-Up’ in the Room,” Washington International Law Journal , Vol. 22, No. 1 (2013), p. 10.

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A Japanese Special Prosecutor? PRCs have also been compared to special prosecutors in the United States, but this analogy is also strained.55 There are many major differences between them.56 In 1973, in the early stages of what would become known as the Watergate scandal, U.S. Attorney General Elliot Richardson appointed former Solicitor General Archibald Cox to be the Department of Justice’s Special Prosecutor to investigate a break-in that had occurred at the headquarters of the Democratic National Committee at the Watergate Hotel in Washington D.C. The break-in occurred a few months before the presidential election of 1972, which was won by the incumbent, President Richard Nixon. In the ensuing investigation, Cox used a Grand Jury to obtain a subpoena for the White House tapes that eventually would incriminate Nixon, but the president invoked executive privilege and ordered his Attorney General to fire Cox. Cox did eventually get fired, but only after two Nixon officials refused to do the deed. Leon Jaworski was then named the new Special Prosecutor, incriminating White House tapes were produced when the U.S. Supreme Court enforced the Grand Jury’s subpoena, and Nixon ultimately resigned in disgrace rather than face impeachment by Congress. In the aftermath of the Watergate scandal, the U.S. Congress and President Jimmy Carter enacted a Special Prosecutor Law as part of the Ethics in Government Act of 1978. This law created an independent office of the Special Prosecutor, and while various provisions of the law were tightened and relaxed in the years that followed, the appointment and removal of the Independent Counsel “was always ultimately in the hands of the Attorney General.”57 To supporters of this law, Special Prosecutors were needed 55

For an argument that special prosecutors can be useful “symbols of justice” but that America has become too reliant on them, see Katy H. Harriger, Independent Justice: The Federal Special Prosecutor in American Politics (University Press of Kansas, second edition, 2000). 56 This section relies on Carl F. Goodman, “Prosecution Review Commissions, the Public Interest, and the Rights of the Accused: The Need for a ‘Grown-Up’ in the Room,” Washington International Law Journal , Vol. 22, No. 1 (2013), pp. 15–21. 57 Carl F. Goodman, “Prosecution Review Commissions, the Public Interest, and the Rights of the Accused: The Need for a ‘Grown-Up’ in the Room,” Washington International Law Journal , Vol. 22, No. 1 (2013), p. 17.

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to protect against corruption at the highest levels of government. To its critics, Special Prosecutors were a weapon that partisans use to attack and distract the opposition. In the first ten years after the Special Prosecutor Law was established there were at least nine highly publicized investigations, which were “a source of constant political damage” to the administrations of Presidents Carter and Reagan.58 Moreover, some observers believed this law was inherently biased in favor of charging because the Special Prosecutor had only one case to investigate. As explained in Chapter 1, one of the greatest risks of prosecutor power is the ability to pick a person and search the law books for some offense against that target.59 Because of these concerns, the Special Prosecutor Law was allowed to expire in 1992 before it was reinstated in 1994 and then allowed to expire again in 1999. Thereafter, internal regulations in the Department of Justice have governed the appointment of Special Prosecutors at the federal level. This was how former FBI Director Robert Mueller was appointed to investigate Russian interference in the presidential election of 2016 that was won by Donald J. Trump. Special Prosecutors can also be appointed at the state and local levels, typically in cases involving a conflict of interest between the local chief prosecutor and some party or parties to the case. One prominent critic of Japan’s PRC has argued that the concerns described above about Special Prosecutors in the United States “should be borne in mind in the context of Japan when considering the unbridled power of an individual citizen to cause a PRC investigation of a particular person – and even more so by the unbridled power of a supermajority of individual citizens to compel the prosecution of that person.”60 I believe this critique misses the mark, for Japanese PRCs and American Special Prosecutors differ in at least four major ways. First, the members of a PRC are not appointed by an Attorney General or some 58

Justice Antonin Scalia, Morrison v. Olso, 487 U.S. 654 (1988), p. 713. Robert H. Jackson, “The Federal Prosecutor,” Journal of the American Judicature Society, Vol. 24 (June 1940), pp. 18–20. 60 Carl F. Goodman, “Prosecution Review Commissions, the Public Interest, and the Rights of the Accused: The Need for a ‘Grown-Up’ in the Room,” Washington International Law Journal , Vol. 22, No. 1 (2013), pp. 20–21. 59

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other government official; they are selected randomly from Japan’s voter rolls. Second, PRCs do not focus on a single case or a single defendant; they can review multiple cases simultaneously. Third, the purpose of a PRC is much broader than controlling corruption at the top levels of government, which is the Special Prosecutor’s main mission. The PRC is authorized to review potentially problematic non-charge decisions in criminal cases of all kinds. Finally, PRCs have seldom been used by political elites to carry out attacks on the opposition. Even in the age of mandatory prosecution this kind of abuse through charging aggression has seldom occurred, though as Chapter 4 explains, there is evidence that the mandatory prosecution of Ozawa Ichiro was “political” in its motives, methods, and effects.

Conclusion Japan’s Prosecution Review Commission is a unique institution: there is nothing else like it in the world. It was born of particular historical circumstances, starting with concerns about problems with prosecutors that became all too evident in imperial Japan. During the occupation that followed Japan’s surrender, the PRC emerged as a product of compromise between American officials who were keen to make Japanese criminal justice more democratically accountable and Japanese officials who resisted American efforts to have chief prosecutors elected and to establish a grand jury that would screen charging decisions made by career prosecutors. The most fundamental transwar continuity in Japanese criminal justice is the central role that prosecutors continue to play at almost every stage of the system, yet everything has not stayed the same. Most notably, the PRC Law of 1948 gave ordinary citizens the authority to review prosecutors’ non-charge decisions. This was a remarkable change, but it was also conservative in two ways: it gave PRCs no power to review prosecutors’ charge decisions, and it made PRC decisions merely advisory. The reform of 2009 changed the latter fact in some circumstances, but the former fact remains true. PRCs still review only non-charge decisions, much to the consternation of some critics of the

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institution. In 2009 the PRC became able to institute mandatory prosecution when it concludes that “prosecution is appropriate” twice in the same case. The rest of this book explores the effects this change and other PRC practices are having on criminal justice in Japan.

3 PRC Impacts

In the early 2000s Japan had 201 PRCs, each of which was associated with a district or branch court’s jurisdiction. But in January 2008 Japan’s Supreme Court reduced the number to 165, by abolishing 50 PRCs that had averaged less than one case petition per year over the previous 20 years, and by adding 14 PRCs to jurisdictions that had heavy caseloads.1 Overall, this “consolidation” (tohaigo) decreased the total number of PRCs by almost 20%. It was justified as a “rationalization” that would reduce the “burden” (futan) on citizens who are called to serve as PRC commissioners, and that would “enhance and strengthen hearings” in the PRCs that would continue to operate going forward. The consolidation of PRCs largely flew under the media radar, but critics claimed that by reducing the access of rural residents to PRC review, it undermined the reformed PRC Law that would take effect in

1

On the PRC consolidation in 2008, see https://elaws.e-gov.go.jp/document?lawid=323CO0 000000353. There were previous consolidations. In 1998, for example, Japan reduced the number of PRCs from 207 to 201. See Supreme Court of Japan, Kensatsu Shinsakai 50-Nenshi (1998), p. 146. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. T. Johnson, Japan’s Prosecution Review Commission, Palgrave Advances in Criminology and Criminal Justice in Asia, https://doi.org/10.1007/978-3-031-19373-6_3

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May 2009, the main aim of which was to bolster the power and relevance of PRCs.2 Critics also claimed that consolidation contradicts a fundamental premise of the PRC system—that uncharged cases ought to be reviewed by citizens who are geographically and culturally close to the incident in question. Most fundamentally, critics claimed that the consolidation was part of a larger problem that has long plagued civilian participation in Japanese criminal justice: the marginalization of PRCs, which some observers believe are “obscure” and “underutilized.”3 Indeed, when I wrote an earlier work on prosecution in Japan, I quoted observers who stressed the “marginalization” of PRCs, and I concluded that even when PRCs are used they have “little effect on prosecutor control over trial inputs.”4 But other analysts have praised the reformed PRC for being a powerful “agent of social change” that could facilitate the “decolonization” of Japan and foster a more “deliberative” form of “participatory democracy” in the country.5 The purpose of the present chapter is to show that the evidence of PRC influence is more mixed than these polar positions pronounce. PRCs are “underutilized” in some ways, and their impacts are modest in several respects, but they have also shaped the practice of Japanese prosecution in significant ways, often for the better. The first section of this chapter uses PRC caseloads and dispositions to describe its activities from a bird’s-eye view. The main point of this overview is that when PRCs review a non-charge decision, they conclude it was appropriate more than 90% of the time. In this way, PRCs perform a conservative legitimating function, by bolstering public support for prosecutors’ decision-making. Section two asks what happens when a 2

For criticisms of the PRC consolidation, see Nihon Bengoshi Rengokai (2008), at https://www. nichibenren.or.jp/library/ja/opinion/report/data/080612.pdf, and Sendai Bengoshikai (2008), at https://senben.org/archives/435. 3 Mark D. West, “Prosecution Review Commissions: Japan’s Answer to the Problem of Prosecutorial Discretion,” Columbia Law Review, Vol. 92 (April 1992), pp. 684–723. 4 David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford, 2002), pp. 222–223. 5 See, for example, Hiroshi Fukurai, “Japan’s Quasi-Jury and Grand Jury Systems as Deliberative Agents of Social Change: De-Colonial Strategies and Deliberative Participatory Democracy,” Chicago-Kent Law Review, Vol. 86, Issue 2 (2011), pp. 789–829; and Hiroshi Fukurai, “Japan’s Prosecutorial Review Commissions: Lay Oversight of the Government’s Discretion of Prosecution,” University of Pennsylvania East Asia Law Review, Vol. 6 (Summer 2011), pp. 1–42.

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PRC reviews an uncharged case and “kicks it back” to prosecutors with a recommendation that prosecutors reconsider their original decision. It shows that in response to PRC kickbacks, prosecutors change their decision from no-charge to charge nearly one-quarter of the time. I also discuss a PRC impact which often goes unnoticed but which may be the most important influence of all. It occurs when prosecutors operating in “the shadow of the PRC” decide to charge cases because they want to avoid the bureaucratic hassle of PRC review and the possibility of media scrutiny and public criticism. Both of these impacts—“kickbacks” and “shadow effects”—are democratic in the sense that they reflect civilian influence on prosecutors’ practice. The final section of this chapter discusses the extraordinary case of former LDP politician Kanemaru Shin, who was charged with a serious crime in 1993 only after prosecutors and PRCs received a deluge of citizen complaints about how prosecutors had treated him with undue leniency. Kanemaru’s case reveals how important public trust is for effective and democratic law enforcement. Ultimately, this chapter shows that PRC impacts in Japanese criminal justice and society are both conservative and progressive. As we shall see, in the challenging venture of trying to make criminal prosecution more effective and more democratic, PRCs perform a variety of cross-cutting functions, the mix of which has changed over time.6

A Bird’s-Eye View Are Prosecution Review Commissions busy? Table 3.1 presents the number of cases filed with PRCs from 1989 to 2019. During these three decades, the average number of cases per year is 3268—an average of 15 6 For prior research on PRC impacts, see David T. Johnson and Mari Hirayama, “Japan’s Reformed Prosecution Review Commission: Changes, Challenges, and Lessons,” Asian Journal of Criminology, Vol. 14, Issue 2 (June 2019), pp. 77–102; Stacey Steele, Carol Lawson, Mari Hirayama, and David T. Johnson, “Lay Participation in Japanese Criminal Justice: Prosecution Review Commissions, the Lay-Judge System, and Penal Institution Visitation Committees,” Asian Journal of Law & Society, Vol. 7, Issue 1 (February 2020), pp. 159–189; and David T. Johnson, Hirayama Mari, and Fukurai Hiroshi, Kensatsu Shinsakai: Nihon no Keiji Shiho o Kaeru ka (Iwanami Shinsho, 2022), pp. 81–126.

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to 20 cases per PRC per year. Table 3.1 also shows that there was a big surge in cases in 1993, which was driven by public outrage over perceived injustices in the Sagawa Kyubin scandal and the investigation of Kanemaru Shin (to be explained later in this chapter). When this outlier year is omitted, the average number of cases filed per year declines by almost 40%, to 2000 or so—about 10 cases per PRC per year. Since the term of service on a PRC is six months, a typical PRC member reviews approximately five cases. By these measures, PRC caseloads are modest: neither so large that they feel pushed to cut corners, nor so small that they have little to do. Except for the caseload surge that occurred in 1993, changes in the number of PRC cases have occurred gradually over the past three decades. As crime rose in Japan in the latter half of the 1990s, so did PRC caseloads, to more than 2600 cases per year in 2004, 2005, and 2009. After 2009, when the PRC reform took effect, there was no sustained increase in caseloads. In fact, the number of cases filed with PRCs in the second half of the 2010s (2015–2019) was only 4% greater than the number filed in the first half of that decade (2010–2014). This indicates that the advent of mandatory prosecution did not stimulate increased use of PRCs. Moreover, from 2018 to 2019, the number of cases filed with PRCs decreased by 20%, to the lowest total Japan has seen since 1999. As depicted in Table 3.1, PRCs can open a case in two ways: by responding to a “petition” filed by a citizen-complainant (moshitate), or by initiating review through its own ex-officio authority (shokken). Petitionary reviews greatly outnumber ex-officio reviews: in 2019 the ratio was 27 to 1, and for the three-decade period of 1989–2019 the average ratio was 12 to 1. But ex-officio reviews can be important. As described in Chapter 2, reform of the PRC Law was partly prompted by the exofficio review of a stalking case involving the wife of a Japanese judge in Fukuoka. Yet there has been a big decline over time in ex-officio reviews. From 1989 to 2000 the annual total always exceeded 100, with an average of 113 ex-officio cases per year. In contrast, from 2001 to 2019 the annual total of ex-officio reviews never exceeded 64, with an average of just 40 per year. This is a decrease of two-thirds compared to the preceding 12-year period.

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Table 3.1 Cases investigated and proposals & recommendations by PRCs, 1989– 2019 Cases investigated Year

Total

Petitioned

Ex-officio

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 1989–2019

1216 1276 1172 2359 41,515 1691 1359 1384 1200 1205 1614 1880 2324 2330 2295 2666 2648 2603 2274 2039 2663 2304 2094 2174 1947 2080 2209 2191 2544 2242 1797 101,295 (100.0%) 76,706 (100.0%)

1103 1114 1043 2249 41,389 1583 1249 1266 1092 1080 1484 1765 2264 2292 2256 2615 2609 2569 2242 2006 2613 2273 2069 2131 1899 2043 2174 2155 2507 2215 1733 99,082 (97.8%) 65,084 (84.8%)

113 162 129 110 126 108 110 118 108 125 130 115 60 38 39 51 39 34 32 33 50 31 25 43 48 37 35 36 37 27 64 2213 (2.2%) 11,672 (15.2%)

1949–1988

Proposals & recommendations 0 0 3 1 0 2 1 0 0 2 1 2 0 0 0 0 1 0 1 0 1 0 1 0 0 1 0 0 0 0 0 17 528 (continued)

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Table 3.1 (continued) Cases investigated Year

Total

Petitioned

Ex-officio

1949–2019

178,001 (100.0%)

164,166 (92.2%)

13,885 (7.8%)

Proposals & recommendations 545

Source David T. Johnson, Mari Hirayama, and Hiroshi Fukurai, Kensatsu Shinsakai: Nihon no Keiji Shiho o Kaeru ka (Iwanami Shinsho, 2022), p. 86. As explained in the text, 1178 of the cases investigated in 1992 and 40,176 of the cases investigated in 1993 were for alleged violation of the Political Funds Control Law in the Kanemaru scandal

PRCs have become less inclined to initiate their own review of noncharge decisions for several reasons. First, as crime rose in the 1990s, PRCs received more case petitions and had less time to engage in exofficio review. Second, as the PRC matured, its case review process became more routinized, thereby marginalizing ex-officio review. Of course, routinization often occurs as institutions age, but in this case it may have been encouraged by court officials in the PRC Office (jimukyoku) through the exercise of their agenda-setting power. The sharp drop in ex-officio review is also consistent with the possibility of a law or policy change. In fact, this is what happened in 2000, when the PRC Law was reformed to allow spouses, siblings, and some close relatives to take over the role of complainant after a victim dies. Before this reform PRCs had a motive to initiate ex-officio review upon learning that a victim had died. The drop in ex-officio reviews after 2000 suggests that PRCs have become more passive in recent decades. Table 3.1 displays a second sign of growing PRC passivity: a sharp drop in “proposals and recommendations” (kengi-kankoku) made to chief prosecutors (kenjisei). By law, these are general suggestions that PRCs can make in order to improve prosecution policy and practice. For example, in 1956 a PRC in Nagasaki recommended that prosecutors notify complainants promptly after a decision not to charge was made. And in 1958 a PRC in Niigata implored prosecutors to investigate more proactively suspected violations of the Public Office Election Law. These general suggestions are important because they have the potential to shape prosecutor action in many

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cases, not just a single case. In the 70 years from 1949 to 2018, PRCs issued a total of 540 proposals and recommendations, but three-quarters of them (401) occurred in the first eight years of that period. Thereafter, PRC proposals and recommendations declined dramatically, from an average of 50 per year in the first eight years to 7 per year in the 1960s and just 3 per year in the 1970s. Then, from 1980 to 2019 there was a total of only 20 proposals and recommendations—an average of one every other year.7 To put the point differently, there were more PRC proposals and recommendations in the single year of 1951 (131) than in the 60 years from 1960 to 2019 (121). In sum, PRCs have become more cautious in two ways: by becoming less inclined to use their discretion to initiate ex-officio review of noncharge decisions, and by becoming less willing to offer general advice about prosecution policy and practice. The latter change is unfortunate, for when chief prosecutors are unelected, there are few other means by which the public can communicate its views to the officials who control this important practice. It is unclear what caused the latter decline. Some observers believe that most of Japan’s serious prosecution problems were addressed in the early postwar period. After that, prosecutors’ standard operating procedures may have met with more PRC approval. Though there is probably truth in this account, there is also reason to wonder if PRCs have become too deferential. As Arnold Toynbee observed, “civilization is a movement, and not a condition, a voyage and not a harbor.” Surely there remains room for further prosecutorial improvement, and more of it might occur if PRCs performed their checking function more proactively, as they did in the early postwar period. Table 3.2 summarizes the main crimes for which PRCs were asked to review prosecutors’ non-charge decisions from 1949 to 2019. Two patterns are prominent. First, PRCs have reviewed a small proportion of all uncharged cases. In 2019, 165 PRCs reviewed non-charge decisions for 1429 suspects, which is an average of 8.7 suspects per PRC, or about one suspect per PRC every month or two. For the major criminal offenses 7 Nishimura Takeshi, “Significance and Some Issues of Japan’s Prosecution Review Commission,” Paper Presented at the Annual Conference of the Asian Law & Society Association, Osaka, December 13, 2019.

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(Penal Code and Special Act offenses, excluding road-traffic offenses), this is less than one PRC review for every 100 non-charge decisions. I will argue in this chapter that PRCs are shaping the prosecution of crime in Japan, but these data suggest that they are not doing it through high-volume review. Second, the criminal cases reviewed by PRCs are wide-ranging, but the two biggest case categories are professional negligence resulting in injury or death (gyomujo kashitsu shogai), which mainly involves traffic collisions, and crimes that require a complaint in order to be prosecuted (kokuso jiken), such as libel and some sex offenses (these and other crimes are included in the “other” category of Table 3.2). In addition to these case categories, the top four crimes reviewed by PRCs in 2019 were assault and assault causing death or injury, abuse of official authority, counterfeiting documents, and fraud (three of these are whitecollar offenses). In the same year, theft (setto), which comprises more than 70% of all Penal Code offenses in Japan and which prosecutors often handle with suspended prosecution, comprised less than 5% of all cases reviewed by PRCs. Among the most common cases reviewed by PRCs, one does not find the serious violent crimes of robbery, which Table 3.2 Penal Code suspects investigated by PRCs, by offense, 2019 and 1949– 2018 2019

1949–2018

Offense

Suspects

Percent

Suspects

Percent

Assault wi Injury/Death Abuse of Authority Counterfeiting Documents Fraud Assault Theft Breach of Trust Abandoned or Concealed Embezzlement Homicide Loss of Credit Other Total

197 183 176 130 66 63 55 53 40 24 10 432 1429

13.8 12.8 12.3 9.1 4.6 4.4 3.8 3.7 2.8 1.7 0.7 30.2 100.0

9510 10,806 13,664 13,826 1937 6593 2492 2901 4383 5492 1429 47,524 120,537

7.9 9.0 11.3 11.5 1.6 5.5 2.1 2.4 3.6 4.6 1.2 39.4 100.0

Source Johnson, Hirayama, and Fukurai (2022), p. 92

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is infrequent in Japan, or rape or sexual assault, which are infrequently reported to police in Japan (see Chapter 6). Similarly, drug offense cases are seldom reviewed by PRCs (methamphetamine is Japan’s biggest illicit drug problem), while in 2019 there were 24 uncharged homicide cases reviewed by these citizen commissions. I will show that PRCs are influencing the prosecution of crime in Japan, but they are doing so despite the infrequent review of some serious offenses. Table 3.3 presents the number of persons not prosecuted in 2020 by the reason prosecutors gave for non-prosecution (this table excludes traffic infractions). In total, nearly 70% of the persons not charged received a disposition of “suspended prosecution” (kiso yuyo), which means that prosecutors believed they had sufficient evidence to charge but decided not to do so for various reasons, such as the offender’s rehabilitation or the payment of restitution.8 By comparison, only 22% of uncharged suspects were not charged because of “insufficient evidence” (kengi fujubun). If we assume that the reasons prosecutors give for nonprosecution are accurate (an assumption which is usually but not always sound), then it is more than 3 times as likely for prosecutors not to charge a case when they have enough evidence to charge than when they do not. This pattern—more than two-thirds of uncharged cases could have been charged—indicates that there is plenty of room to challenge decisions in the “suspension of prosecution” category. The next two sections explore evidence about this important class of cases.

8 According to Article 248 of Japan’s Code of Criminal Procedure, prosecutors can suspend prosecution after weighing the offender’s age, character, and environment, the circumstances and gravity of the crime, and the accused’s rehabilitative potential. Since the investigation and disposition of a case often occur behind closed doors, and since the identity of a criminal suspect who is not prosecuted is seldom made public, an offender whose prosecution is suspended may be more likely than someone who is charged to reenter society and be rehabilitated (without the stigma of a criminal record). But prosecutors also suspend prosecution in order to economize on their limited resources. See David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford University Press, 2002), pp. 104–116.

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Table 3.3 Suspects not charged by prosecutors, by reason, 2020 (with percentages) Total

Suspended prosecution

Insufficient evidence

Complaint withdrawn

Insanity

Other

152,569 (100.0)

105,986 (69.5)

33,539 (22.0)

6064 (4.0)

367 (0.2)

6613 (4.3)

Source Johnson, Hirayama, and Fukurai (2022), p. 94

Kickback Patterns Table 3.4 presents PRC dispositions for 1949 to 2019. There are three main disposition categories: prosecution is appropriate (kiso soto), nonprosecution is not appropriate (fukiso futo), and non-prosecution is appropriate (fukiso soto). The first two categories challenge prosecutors in that they call for reconsideration of a non-charge decision. Together, these two categories constitute a concept translated as PRC “kickbacks” (kenshin bakku). Table 3.4 reveals several important facts about kickbacks.9 First, PRCs challenged prosecutors more frequently in the early postwar years, and they also challenged them more strongly, by issuing many “prosecution is appropriate” (kiso soto) dispositions. For example, from 1949 to 1953 PRCs kicked back approximately 15% of the cases they reviewed, and the vast majority of the kickbacks were strong. In this five-year period there were 895 “prosecution is appropriate decisions” and only 40 “non-prosecution is not appropriate” decisions, a strong-to-weak kickback ratio of more than 20 to 1. By contrast, in the middle five years (1985–1989) of the seven-decade period covered in Table 3.4, only 2 to 5% of all PRC decisions were kickbacks, and there were nearly 20 times more weak kickbacks (“non-prosecution is not appropriate”) than strong ones (“prosecution is appropriate”). The percentage of PRC 9

The available data do not permit reporting about geographic variation in PRC practice, but there may be significant variation within Japan in PRC inputs and outputs. More research is needed on this subject, just as more research is needed about geographic variation in Japanese criminal justice more generally. There have long been disparities in criminal sentencing between the Kanto region (centered on Tokyo) and the Kansai region (centered on Osaka), with punishment practices in the former being more severe. See David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford, 2002), pp. 66–71.

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Table 3.4 PRC dispositions, 1949–2019 Nonprosecution is Prosecution not is Year Total appropriate appropriate 1949 1950 1951 1952 1953 1954 1955 1956 1957 1958 1959 1960 1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984

303 601 1703 1941 1756 1422 1760 1988 1757 1763 1973 1781 1569 1498 1784 1577 1754 2116 2256 2546 2083 2157 2262 2202 2543 2561 2117 2045 1961 1927 2161 2223 2099 2724 2524 1620

37 (12.2%) 87 (14.5%) 251 (14.7%) 283 (14.6%) 237 (13.5%) 116 (8.2%) 92 (5.2%) 106 (5.3%) 71 (4.0%) 90 (5.1%) 71 (3.6%) 68 (3.8%) 40 (2.6%) 34 (2.3%) 66 (3.7%) 59 (3.7%) 39 (2.5%) 137 (5.5%) 61 (2.7%) 23 (0.9%) 56 (2.7%) 20 (0.9%) 48 (2.1%) 38 (1.7%) 20 (0.8%) 28 (1.1%) 4 (0.2%) 11 (0.5%) 20 (1.0%) 11 (0.6%) 1 (0.1%) 6 (0.3%) 5 (0.2%) 6 (0.2%) 5 (0.2%) 5 (0.3%)

2 (0.7%) 9 (1.5%) 23 (1.4%) 2 (0.1%) 6 (0.3%) 5 (0.4%) 2 (0.1%) 21 (1.1%) 15 (0.9%) 34 (1.9%) 43 (2.2%) 52 (2.9%) 47 (3.0%) 47 (3.1%) 54 (3.0%) 72 (4.6%) 72 (4.1%) 100 (4.7%) 133 (5.9%) 129 (5.1%) 169 (8.1%) 127 (5.9%) 184 (8.1%) 127 (5.8%) 138 (5.5%) 132 (5.2%) 104 (4.9%) 106 (5.2%) 152 (7.8%) 135 (7.0%) 99 (4.6%) 87 (3.9%) 55 (2.6%) 87 (3.2%) 59 (2.3%) 52 (3.2%)

Nonprosecution is appropriate

Other

210 410 1174 1388 1265 1069 1138 1422 1410 1306 1460 1365 1175 1179 1374 1165 1300 1505 1563 1922 1371 1500 1622 1598 1821 1849 1663 1492 1482 1492 1679 1863 1783 2268 2187 1292

54 95 255 268 248 232 528 439 261 333 399 296 307 238 290 281 343 374 499 472 487 510 408 439 555 552 346 436 307 289 382 267 256 363 273 271 (continued)

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Table 3.4 (continued)

Year

Total

Prosecution is appropriate

1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019

1579 2364 2033 1065 1184 1226 1344 1166 42,591 1288 1781 1375 1328 1149 1307 1949 2168 2138 2296 2577 2605 2795 2396 2366 2447 2320 2178 2152 1968 2019 2171[26] 2343[56] 2274[17] 2329[43] 2068[169]

10 (0.6%) 2 (0.1%) 2 (0.1%) 2 (0.2%) 0 (0.0%) 1 (0.1%) 4 (0.3%) 1 (0.1%) 2 (0.01%) 3 (0.2%) 0 (0.0%) 7 (0.5%) 0 (0.0%) 1 (0.1%) 1 (0.1%) 3 (0.2%) 1 (0.1%) 5 (0.2%) 6 (0.3%) 10 (0.4%) 5 (0.2%) 15 (0.5%) 9 (0.4%) 13 (0.6%) 11 (0.5%) 10 (0.4%) 8 (0.4%) 8 (0.4%) 1 (0.1%) 9 (0.5%) 4 (0.2%) 3 (0.1%) 1 (0.1%) 3 (0.1%) 9 (0.4%)[9]

Nonprosecution is not appropriate

Nonprosecution is appropriate

Other

48 (3.0%) 42 (1.8%) 93 (4.6%) 50 (4.7%) 58 (4.9%) 36 (2.9%) 41 (3.1%) 50 (4.3%) 10,173 (23.9%) 206 (16.0%) 59 (3.3%) 70 (5.1%) 67 (5.1%) 64 (5.6%) 82 (6.3%) 105 (5.4%) 149 (6.8%) 134 (6.3%) 139 (6.1%) 131 (5.1%) 142 (5.5%) 109 (3.9%) 119 (5.0%) 117 (5.0%) 113 (4.6%) 149 (6.4%) 123 (5.7%) 128 (6.0%) 77 (3.9%) 114 (5.7%) 118 (5.4%) 101 (4.3%) 67 (3.0%) 81 (3.5%) 134 (6.5%)[43]

1232 2037 1796 842 909 871 1063 892 949 878 1528 1104 1028 843 981 1468 1740 1679 1792 2031 2111 2286 1863 1734 1866 1764 1724 1600 1658 1670 1801 2023 1895 1958 1640[117]

289 283 142 171 217 318 236 223 31,467 201 194 194 233 241 243 373 296 320 359 405 347 385 405 502 457 397 323 416 232 226 248 216 311 287 285[0]

Source Johnson, Hirayama, and Fukurai (2022), pp. 96–97. For 2015–2019, the figures in brackets [n] indicate the number of cases in which a PRC had a “legal advisor” (shinsa hojonin)

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reviews resulting in a strong kickback dipped below 1% for the first time in 1968 (the twentieth year of the institution’s existence). And since 1978, the percentage has remained below 1% every year for more than four decades. In three years (1989, 1995, and 1997) there were no strong kickbacks at all. In short, PRCs have become less likely to challenge prosecutors’ non-charge decisions, and when they do challenge they have become less likely to do so strongly. Second, Table 3.4 shows that since 2000 there has been modest variation in the number of cases that PRCs decided each year. Except for the exceptional year of 1993 (when PRCs received a flood of complaints about the Kanemaru case), the largest number of dispositions in any one year was 2795 in 2006. That is approximately 40% larger than the smallest number, which was 1949 cases in 2000. In the busiest year (2006) there was an average of 14 cases per PRC per year, while in the least busy year (2000) there was an average of 10 or so. Third, Table 3.4 presents data for the last five years (2015–2019) about the presence of “legal advisors” (shinsa hojonin) in PRC proceedings. During this half-decade, legal advisors were present in only 2.8% of PRC reviews, though this is likely to increase in the years to come. In 2019 legal advisors were present in 8.2% of PRC proceedings, compared with just 1.5% for the previous four years. This sharp rise is mainly the result of efforts by the Japanese bar to provide PRCs with more legal expertise in their decision-making,10 and to otherwise ensure that there is more due process in PRC proceedings.11 As explained in Chapter 2, this is a welcome development in some respects, especially now that citizens can institute mandatory prosecution, which raises the risk that a suspect’s rights could be neglected or violated. But one risk of more involvement by legal professionals in PRC proceedings is that the voices and views of ordinary citizens could get muted or marginalized, as happened

10

Nihon Bengoshi Rengokai, “Kensatsu Shinsakai Seido no Unyo Kaizen oyobi Seido Kaikaku o Motomeru Ikensho,” September 15, 2016, pp. 1–15. 11 For a thoughtful analysis by a former prosecutor of the need for more due process in PRC proceedings, see Kimeda Hiroshi, “Kensatsukan oyobi Kensatsu Shinsakai no Sotsui Sairyo (Kiso Suru Handan) o Chekku Suru Hori no Hitsuyosei,” Gentosha Gold Online, April 6, 2021, at https://gentosha-go.com/articles/-/33106?per_page=1.

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several times in the past when citizen participation in Japanese criminal justice was undermined by the actions of legal professionals.12 To prevent this from happening, some segments of the Japanese bar are recommending a reform that would forbid legal advisors from “interfering” in the PRC decision-making process. On the other hand, there are also calls to permit legal advisors to employ their expertise by assisting the PRC in drafting disposition statements (giketsusho). In this way, there is tension between the desire to help PRCs do their job well and the need to maintain the PRC’s independence. Fourth, in almost every year since 1979, the number of PRC kickbacks never constituted more than 7% of all PRC dispositions. In each and every year of this period “prosecution is appropriate” outcomes comprised at most 0.6% of PRC decisions, while “non-prosecution is not appropriate” decisions comprised 4 to 6% of the total. In other words, for every PRC challenge to a non-charge decision, there have been more than 13 supportive “non-prosecution is appropriate” decisions. Clearly, one core PRC function is the ratification and legitimation of non-charge decisions made by professional prosecutors. The last conclusion must be qualified because there is complexity in the data. As described above, during the early years that PRCs operated their kickback figures were much higher than they have been in recent decades. There are two explanations for the decline in the propensity of PRCs to challenge prosecutors’ non-charge decisions, and both are probably true. The first explanation focuses narrowly on criminal justice actors and institutions. On this view, the feedback that citizens gave prosecutors in the early years of the PRC altered prosecutors’ decisionmaking in subsequent years by making them more conscious of the possibility of PRC review, and by making them more cautious about dropping certain kinds of cases. On this explanation, prosecutors have been taking PRCs seriously, and they have learned to internalize the PRC’s preferences by making decisions in its shadow.

12

Kent Anderson and Mark Nolan, “Lay Participation in the Japanese Justice System: A Few Preliminary Thoughts Regarding the Lay Assessor System (saiban-in seido) from Domestic, Historical, and International Psychological Perspectives,” Vanderbilt Journal of Transnational Law, Vol. 37 (2004), pp. 935–992.

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The second explanation for the decline in PRC kickbacks focuses more broadly on Japan’s political culture. Reforms in the postwar period made many Japanese institutions more democratic, but some structural legacies of authoritarian Japan persisted, eventually resulting in what has been called “democracy in a box”—a political system that outwardly appears democratic but inwardly lacks the political culture of debate and dissent that is needed for responsive democratic governance. Two hallmarks of “democracy in a box” are citizens who “acquiesce to overweening power” and who conform to “a dictated consensus concerning permissible behavior.” Other legacies of the “revolution from above” that occurred after Japan’s defeat in the Pacific War include “socialization in the acceptance of authority,” “reinforcement of a collective fatalism visà-vis political and social power,” and a sense that ordinary people are largely unable to influence the course of events.13 In this historical and political context, perhaps we should not be surprised that PRCs became more passive over time.

Kickback Effects This section presents more empirical evidence in order to explain the effects of PRC kickbacks on prosecutorial decision-making. It focuses mainly on the period since 2000. By law, when prosecutors receive a PRC kickback (a “prosecution is appropriate” or “non-prosecution is not appropriate” disposition), they must either charge the suspect or respond with a written explanation to the PRC within three months

13 The quotations in this paragraph come from MIT historian John W. Dower’s magisterial Embracing Defeat: Japan in the Wake of World War II (Norton, 1999), pp. 439–440 and p. 561.

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(PRC Law, Article 41-2).14 The evidence shows that PRCs have a significant influence on prosecutors in a substantial proportion of cases that they review. Table 3.5 shows that there were 2322 PRC kickbacks between 2001 and 2019, which is an average of 122 per year—less than one kickback per PRC per year. During this period, more than one-fifth of kickbacks (22.0%) resulted in prosecutors changing their decision from non-charge to charge. In the eight years before the PRC Law was reformed (2001– 2008), prosecutors changed their non-charge decision to “charge” in more than one-quarter (27.2%) of the sent-back cases. That was lot of rethinking by prosecutors who have been described as obstinate, stubborn, and intransigent.15 After the PRC Law was reformed (2009–2019), the changed-to-charge rate for prosecutors fell to 17.5%, and in 2017 the percentage even fell into the single digits (5.9%) before bouncing back to 25% in 2018. It is unclear why the kickback change rate declined after 2009, but one possibility is that when the PRC Law was reformed to allow for the possibility of mandatory prosecution, prosecutors felt liberated to be less deferential to PRC suggestions. In effect, their attitude in the post-reform context may have become, “We don’t need to change our original non-charge decision because now they can change it for themselves if they want to.” But this is a hypothesis, not a fact. The kickback findings are similar for the longer postwar period, though we do see changes over time in the propensity of prosecutors to heed a PRC’s recommendation. During the first seven decades of the PRC’s existence (1949–2019) there were 18,177 PRC kickbacks, about 8.9% of which resulted in prosecutors changing their decision to “charge.” And in the first five decades of that period (1949–2000), 14

Occasionally this requirement is respected in the breach. For example, in a political case involving former LDP Member of Parliament Sugawara Isshu, prosecutors sat on a complaint for seven months, apparently in the hope that they could avoid PRC review. But the complainant was represented by a former prosecutor named Gohara Nobuo, who persistently pursued his client’s case. Eventually, this case was accepted for review by a PRC, which found that prosecution is appropriate (kiso soto) against Sugawara. See Gohara Nobuo, “‘Kensatsu Shinsakai no Seigi’ de Gi’in Jishoku no Oikomareta Sugawara Isshu shi, ‘Hisho ni Hamerareta’ ni tsuite mo Setsumei o,” Blogos, June 2, 2021. 15 See, for example, Chalmers Johnson, Conspiracy at Matsukawa (University of California, 1972); Karel van Wolferen, The Enigma of Japanese Power: People and Politics in a Stateless Nation (Alfred A. Knopf, 1989); and Takano Takashi, Hitojichi Shiho (Kadokawa, 2021).

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Table 3.5 Prosecutor disposition after PRC kickbacks, 2001–2019 (number of suspects) Year

No. of kickbacks

Charged

Not charged

Charge rate (%)

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019

135 112 157 141 152 146 99 151 140 159 122 106 122 114 121 66 85 84 110

33 41 45 37 39 49 18 35 36 28 21 20 16 14 20 13 5 21 21

102 71 112 104 113 97 81 116 104 131 101 86 106 100 101 53 80 63 89

24.4 36.4 28.7 26.2 25.7 33.6 18.2 23.2 25.7 17.6 17.2 18.9 13.1 12.3 16.5 19.7 5.9 25.0 19.1

* For

2001–2019, the average charge rate in PRC kickback cases was 22.0% Source Johnson, Hirayama, and Fukurai (2022), p. 103

prosecutors’ changed-to-charge rate was 7.4%—about one case in fourteen. This rate has increased markedly in recent years. As shown in Table 3.6, the changed-to-charge rate for 2001 to 2019 (22.0%) is three times higher than the changed-to-charge rate for 1949 to 2000. There are several reasons for this rise, but the most important seems to be a change in prosecutors’ perception of their role, from being first and foremost a “representative of the public interest” (koeiki no daihyosha) to an increased stress on being an agent or representative of victims (higaisha no dairinin) in the new age of victims’ rights.16 The next two tables present more detail about PRC kickbacks based on the reasons prosecutors give for their decisions not to charge. Table 16

On the role of victims in Japanese criminal justice, see Saeki Masahito, Hanzai Higaisha no Shiho Sanka to Ryokei (Tokyo, 2016); and David T. Johnson, “Changes and Challenges in Japanese Criminal Justice,” in Daniel H. Foote, editor, Law in Japan: Into the Twenty-First Century (University of Washington, 2007), pp. 343–383.

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Table 3.6 Prosecutor charge rate after PRC kickbacks, 1949–2019 Years

No. of kickbacks (annual average)

No. charged (charge rate)

1949–2000 2001–2019 2001–2008 2009–2019 1949–2019

15,855 (305) 2322 (122) 1093 (137) 1229 (112) 18,177 (256)

1111 (7.0%) 512 (22.0%) 297 (27.2%) 215 (17.5%) 1623 (8.9%)

Source Johnson, Hirayama, and Fukurai (2022), p. 105

3.7 summarizes the data for “suspended prosecutions” (kiso yuyo)—when prosecutors say they have enough evidence to charge but decide not to, and then a PRC reviews the case and kicks it back with a recommendation for prosecutors to reconsider their original decision. From 1997 to 2019, prosecutors changed a “suspended prosecution” decision to “charge” in more than one-third (37.2%) of cases that were kicked back to them. This is much higher than the overall changed-to-charge rate (22.0%) that we saw in Table 3.5. In suspended prosecution cases, the highest annual rate of change was 52.9% (in 2007), the lowest was 11.8% (in 2013), and in 11 of the 23 years that are summarized in Table 3.7 the change rate exceeded 40%. This is more strong evidence that prosecutors do change their minds in response to PRC recommendations, especially when the original decision was “suspended prosecution.” The latter fact seems predictable, for it is precisely in cases of suspended prosecution that the central issue is whether a case should be charged, not whether there is sufficient evidence to do so.17 The data show that prosecutors and PRCs frequently disagree about this issue. Table 3.8 presents data for cases in which PRCs kicked back a case to prosecutors after prosecutors had concluded that there was “insufficient evidence” to charge (kengi fujubun). From 2001 to 2019 there were nearly three times more PRC kickbacks in these cases (1606) than there were for suspended prosecution cases (568), but the changed-to-charge rate for the former (19.2%) is only about half the changed-to-charge 17

In discussions about reform of the PRC Law, some people argued that mandatory prosecution should only be permitted when prosecutors’ original disposition was “suspended prosecution,” but that proposal did not get enacted, for it was perceived to put too much faith in prosecutors’ judgments about whether there is sufficient evidence to charge.

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Table 3.7 Prosecutor disposition after PRC kickbacks for suspended prosecution cases, 1997–2019 (number of suspects) Year

No. of kickbacks

Charged

Not charged

Charge rate (%)

1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019

28 19 28 39 41 38 41 32 32 44 17 52 40 61 25 23 34 25 16 14 6 14 13

15 9 15 20 13 16 17 9 12 19 9 18 18 16 6 10 4 7 7 3 2 5 4

13 10 13 19 28 22 24 23 20 25 8 34 22 45 19 13 30 18 9 11 4 9 9

53.6 47.4 55.6 51.3 31.7 42.1 41.5 28.1 37.5 43.2 52.9 34.6 45.0 26.2 24.0 43.5 11.8 28.0 43.8 21.4 33.3 35.7 30.8

* For

1997–2019, the average charge rate after PRC kickbacks in suspended prosecution cases was 37.2% Source Johnson, Hirayama, and Fukurai (2022), p. 107

rate for the latter (37.2%). For cases in which prosecutors conclude there is “insufficient evidence,” the changed-to-charge rate never exceeds 40%%, and it exceeds one-third only in 2002, when it was 35.4%. In 11 of the 19 years depicted in this table, the changed-to charge rate was less than 20%, compared with only 1 of 23 years for the “suspended prosecution” cases that were summarized in Table 3.7. By volume, PRCs have more impact on prosecutors in “insufficient evidence” cases, but in percentage terms their batting average is significantly higher in “suspended prosecution” cases. The willingness of PRCs to challenge prosecutors’ fundamental fact-finding premise about the sufficiency of

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Table 3.8 Prosecutor disposition after PRC kickbacks for insufficient evidence cases, 2001–2019 (number of suspects) Year

No. of kickbacks

Charged

Not charged

Charge rate (%)

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019

92 65 103 91 112 95 74 96 99 92 86 66 68 77 103 49 79 67 92

19 23 26 27 26 30 9 17 18 12 14 9 12 7 13 10 3 16 17

73 42 77 64 86 65 65 79 81 80 72 57 56 70 90 39 76 51 75

20.7 35.4 29.7 29.7 23.2 31.6 12.2 17.7 18.2 13.0 16.3 13.6 17.6 9.1 12.6 20.4 3.8 23.9 18.5

* For

2001–2019, the average charge rate after PRC kickbacks in cases with insufficient evidence was 19.2% Source Johnson, Hirayama, and Fukurai (2022), p. 108

evidence also indicates that this institution is not as deferential to authority as many critics claim. Prosecutors sometimes decide not to charge because there is “no suspicion” (kengi nashi), which essentially means that in their view there is no evidence of guilt. PRCs seldom kickback a case after this disposition has been made. From 2001 to 2019, they did so only 115 times—an average of 6 times per year. Prosecutors did not change their decision to “charge” in any of these cases.18 Similarly, PRCs rarely kickback a case after prosecutors have concluded “there was no crime” (tsumi to narazu). Indeed, kickbacks of this kind occurred only 10 times between 2001 and 2019, and all 10 cases were concentrated in just three years 18

David T. Johnson, Mari Hirayama, and Hiroshi Fukurai, Kensatsu Shinsakai (Iwanami Shinsho, 2022), p. 110.

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(2002, 2011, and 2019).19 Interestingly, prosecutors responded by filing criminal charges in two of these ten cases. In one of them, a patient receiving treatment at a hospital in Fukushima killed a psychiatrist with a knife and severely wounded a second physician. Prosecutors originally concluded that because the patient was suffering from schizophrenia he could not be found criminally responsible, and they decided not to charge him because there had been “no crime.” The victim’s family filed a complaint with a Fukushima PRC, which ruled that “non-prosecution is not appropriate.” After receiving this kickback, prosecutors decided to charge the patient with homicide and other offenses, and at trial they sought a sentence of 13 years. The defendant was convicted and sentenced to 10 years imprisonment, and the decision was finalized when the defendant withdrew his appeal.20 Despite this remarkable case, the evidence shows that PRCs rarely recommend charges after prosecutors have concluded there is “no suspicion” or “no crime,” and their kickbacks seldom have a discernable effect on prosecutors’ decision-making in these case categories. Table 3.9 presents information for 2002–2019 about how criminal defendants were sentenced in first-instance trials after prosecutors charged following a strong PRC kickback that “prosecution is appropriate.” There are three main patterns in the data. First, fewer defendants (an average of 16 per year) were sentenced after the 2009 reform of the PRC Law than before it (an average of 36 per year). This decline by more than half in the number of defendants sentenced after a strong PRC recommendation partly reflects the crime decline that occurred in Japan during these two decades, but as discussed above, it also may reflect a decline in the propensity of PRCs to tell prosecutors what to do.

19

David T. Johnson, Mari Hirayama, and Hiroshi Fukurai, Kensatsu Shinsakai (Iwanami Shinsho, 2022), p. 111. 20 On the role psychiatrists play in deciding issues of criminal responsibility, see Erik Herber, Lay and Expert Contributions to Japanese Criminal Justice (Routledge, 2019), pp. 35–72. Herber finds that while the issue of potentially dangerous and mentally disturbed offenders appears prominently in public discussions, “Japanese courts today find virtually all defendants fully criminally responsible regardless of their mental condition” (p. 35). In this sense, defendants who are “criminally insane” or of “diminished responsibility” have “all but disappeared” from Japan’s juridical landscape.

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Table 3.9 Trial result after cases charged by prosecutors following PRC kickbacks, 2002–2019 Year

Defendants convicted

Prison (suspended)

Fine

Acquitted

Total no. tried

2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2002–2019 1949–2001 1949–2019

31 40 42 34 54 23 27 33 26 21 12 17 17 13 12 9 14 16 441 1003 1444

8 (6) 11 (7) 18 (11) 12 (6) 24 (12) 9 (4) 6 (5) 13 (9) 11 (8) 9 (3) 1 (0) 9 (4) 12 (6) 7 (5) 5 (3) 7 (2) 7 (3) 8 (5) 177 (99) 347 (253) 524 (352)

23 29 24 22 30 14 21 20 15 12 11 8 5 6 7 2 7 8 264 656 920

0 0 0 1 1 0 2 3 2 1 4 4 3 0 0 1 1 3 26 (5.6%) 76 (7.0%) 102 (6.6%)

31 40 42 35 55 23 29 36 28 22 16 21 20 13 12 10 15 19 467 1079 1546

Note This table includes mandatory prosecutions, and the “acquitted” figures include charges that were dismissed Source Johnson, Hirayama, and Fukurai (2022), p. 113

Second, sentencing outcomes after PRCs issue “prosecution is appropriate” decisions are strikingly lenient. From 2002 to 2019, only one in six defendants (16.7%) who were charged after a strong PRC kickback were sentenced to prison. The rest were either fined (57%), received a suspended sentence of imprisonment (21%), or were acquitted at trial (5.6%). With some exceptions—Japan has the death penalty, and many offenders sentenced to life imprisonment are never released on parole— Japanese criminal courts are known for sentencing offenders leniently.21 But the sentencing leniency in these strong kickback cases also suggests 21

Daniel H. Foote, “The Benevolent Paternalism of Japanese Criminal Justice,” California Law Review, Vol. 80, No. 2 (March 1992), pp. 317–390.

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that the suspects deemed deserving of prosecution by PRCs are often guilty of offenses that are not especially serious. The third pattern in Table 3.9 is that the probability of an acquittal after a strong PRC kickback rose after the 2009 reform. In the eight years before that reform (2002–2009) only 7 defendants were acquitted, while 19 were acquitted in the ten years after (2010–2019). Before reform the not-guilty rate in PRC-inspired trials was 2.4%, while after it was 4.5 times higher (10.8%). The acquittal rate for the most recent ten years (10.8%) is also substantially higher than the 6.6% acquittal rate for the entire seven decades of the PRC’s existence (1949–2019). This recent increase in the acquittal rate suggests that in the shadow of the possibility of mandatory prosecution, prosecutors are sometimes charging more aggressively than they did in the pre-reform period, though this appears to be happening in a thin slice of cases. What are the main takeaways from this analysis of uncharged cases that PRCs kickback to prosecutors? Research shows that among individuals and organizations, there is a strong tendency to reject new information that contradicts established beliefs and commitments.22 In medicine and psychology this tendency is known as the Semmelweis Reflex, which is a cousin of the well-known cognitive biases of “confirmation bias” and “belief perseverance.”23 In wrongful conviction cases, a strong tendency to reject critical claims has been observed among Japanese prosecutors too.24 But the willingness of prosecutors to change their non-charge decisions in more than one-fifth of the cases that PRCs have kicked back since 2001 suggests claims of prosecutorial obstinacy may be overstated. Prosecutors’ willingness to change their minds about non-charge decisions also contradicts the common claim that PRCs have little effect on their decision-making. Of course, by looking only at cases that have been kicked back to prosecutors nothing can be concluded about whether PRCs are kicking 22

Adam Grant, Think Again: The Power of Knowing What You Don’t Know (Viking, 2021). Leah Ginnivan, “The Dirty History of Doctors’ Hands” (2016), at https://u.osu.edu/korzen. 1/2016/11/25/the-dirty-history-of-doctors-hands/. 24 Kana Sasakura and David T. Johnson, “Kensatsukan to Gohan: ‘Hitei no Bunka’ kara no Dakkyaku wa Kano ka: Amerika no Saikin no Doko kara Kangaeru,” Kikan Keiji Bengo, No. 103 (Autumn 2020), pp. 50–57. 23

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back enough cases—or too many. As the rest of this book argues, PRCs need to be invigorated so that they challenge prosecutors’ non-charge decisions more frequently, especially for crimes that have been chronically under-prosecuted, such as sex crimes and white-collar offenses. But from the data analyzed in this chapter we see that while complaints get made to PRCs in less than 1% of all non-charge decisions, PRCs kickback approximately 5% of those cases to prosecutors. And when a case is kicked back, the result is often a different outcome, especially in the highly discretionary cases of suspended prosecution, where the changedto-charge rate for the most recent two decades is 37%. Moreover, this rate has increased since the early decades of the postwar period when PRCs issued more challenges to prosecutors but with less effect. In this historical sense, the kickback part of the PRC story can be summarized as “fewer challenges but more changes.”

A Surge of Complaints Table 3.1 showed a huge surge in citizen complaints to PRCs in 1992– 1993. This section explains the surge and reveals more truths about prosecution and PRCs in Japan. Most importantly, this case study shows that prosecutors can be motivated to act by public criticism of the impunity that political elites in Japan have enjoyed throughout the postwar period. The surge in petitions to PRCs occurred over a two-year period. First the total number of cases filed more than doubled, from 1172 in 1991 to 2359 in 1992. Then in 1993 the number of complaints increased exponentially to 41,515—an 18-fold rise. In fact, the one-year figure for 1993 is more than 40% of the total number of complaints filed with PRCs in the entire three-decade period summarized in Table 3.1 (1989– 2019), and it is 16 times greater than the number of complaints in the next busiest year (2004). This extraordinary surge also helps explain why violations of the Political Funds Control Law constituted the single most common complaint to PRCs in the 60-year period from 1949 to 2009.25 25

Asahi Shimbun, “Ichi kara Wakaru: Kensatsu Shinsakai,” October 5, 2010, p. 33.

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What happened? When public support for prosecutors is stable it can be difficult to perceive, but when public support plummets it becomes clear how dependent on it prosecutors are. Support for prosecutors sank in September 1992, when prosecutors charged Kanemaru Shin— then the most powerful politician in the ruling Liberal Democratic Party—with violating the Political Funds Control Law by accepting a 500 million yen ($5 million) contribution from the Sagawa Kyubin Company. It was a sum far exceeding the maximum contribution allowed by law, but special prosecutors in Tokyo (tokusobu) did not even require Kanemaru to suffer the indignity of appearing at their office for questioning. (Kanemaru claimed he could not leave his house because of all the reporters camped outside his door.) Instead, through a simple process known as “summary procedure” (ryakushiki tetsuzuki), Kanemaru was permitted to pay his fine by mail. The amount was the legal maximum for a charge of this kind: 200,000 yen ($2000). This was less than four days’ interest on the ill-gotten “contribution,” and it was roughly the equivalent of a parking ticket in some of the swankier parts of Tokyo. When Parliament asked Kanemaru to testify in its own investigation of this case, he declared that he needed eye surgery to counteract the effects of diabetes. And when Parliamentarians conducted their own bedside questioning, the don simply ducked by saying “I was drunk and don’t remember.”26 The country erupted in indignation, for this seemed to be special treatment of a kind that was discussed in Chapter 1—when prosecutors go easy on their friends and allies. In a premeditated act of civil disobedience, the 45-year-old president of a small corporation defaced the sign in front of the Tokyo District Prosecutors Office with five bottles of yellow paint. Newspapers throughout the country printed editorials harshly rebuking prosecutors for treating Kanemaru with kid gloves.27 And Sato Michio, the superintendent prosecutor (kenjicho) in Sapporo, wrote a blistering critique of his colleagues’ handling of this case that was published on the front-page of Asahi Shimbun, Japan’s newspaper

26

Jacob Schlesinger, Shadow Shoguns: The Rise and Fall of Japan’s Postwar Political Machine (Simon & Schuster, 1997), p. 250. 27 David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford, 2002), pp. 138–140.

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of record. It was titled “What Is the Prosecutor’s Role?” (kensatsukan no yakuwari to wa nani ka), and here are some excerpts: Generations of Public Prosecutor Generals (kenji socho) have drummed the principle of ‘strict fairness’ into their subordinates; all of us have been taught that it is our job to ‘thoroughly pursue the truth.’ Under the Criminal Procedure Act, everyone is to be treated the same, regardless of position, social standing, or occupation. In another profession, a big shot might be given special treatment while a poor nobody would be made to toe the line. But a prosecutor is a specialist in the law and would not – could not, in fact – act in this way. This is what ‘strict fairness’ is all about, and prosecutors down through history have passed on from one generation to the next this tradition of doing their job without fear of, or submission to, the powers that be. All prosecutors pride themselves on this – in fact it is what keeps them going in an extremely difficult job. A thorough search for the truth means employing every possible means so that not a shred of doubt remains. For a prosecutor to compromise for no good reason and quit in this pursuit of the truth would be a serious breach of duty as a representative of the public interest. Suppose we have a case involving political contributions from someone rumored to have links with the underworld. It is unclear whether the contributions were received by an individual, who could be fined, or by an organization, whose leaders could be sent to prison. It is also not clear how the funds were used. Suppose it looks like the individual pocketed the money, and there are grounds for suspecting tax evasion. In this day and age, the prosecutor who would fail to dig into these points does not exist. And if such negligence did occur, it could be only through total disregard of the directives of the Public Prosecutor General. The point is that where the law is concerned, there can never be special treatment for anyone. The people must identify with the law if it is to work, and those concerned [i.e. prosecutors] are called on now to strive harder to make this happen.28

28 Sato Michio’s essay was originally published on the front page of the Asahi Shimbun (September 29, 1992), and portions of it were then translated into English by the New York Times as “Can Japanese Politics Be Purified? No Breaks for Big Shots” (October 10, 1992). Sato’s essay was also reprinted in his memoir, Kenji Chosho no Yohaku (Asahi Shimbunsha, 1993). I was doing research in Japan in 1993 and 1994, and several prosecutors told me that

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In addition to these high-profile acts of criticism and resistance, thousands of citizens sent letters of protest to prosecutors in Tokyo complaining about how they had handled Kanemaru’s case. Many thousands more sent complaints to PRCs, demanding that prosecutors reinvestigate and charge in a manner commensurate with the seriousness of Kanemaru’s corruption. In 1993, the peak year for PRC activity, more than 10,000 complaints resulted in “non-prosecution is not appropriate” dispositions (see Table 3.4). That is, nearly one-quarter of all the complaints filed that year were kicked back to prosecutors with a recommendation to investigate more, by far the highest proportion of kickbacks ever. In the weeks following Kanemaru’s summary prosecution, prosecutors also had to deal with a big increase in uncooperative witnesses and suspects. Some people refused to come to prosecutors’ offices for interviews and interrogations, or they came but refused to talk, or they came and then chided prosecutors about the Kanemaru case instead of responding to investigators’ questions. Others refused to pay fines, maintaining that if Kanemaru only had to pay $2000 for an illegal “donation” of $5 million, then their own fines were unfair. To prosecutors who are accustomed to receiving high levels of public deference, compliance, and cooperation, this backlash was shocking. It also reminded them that their ability to get work done is rooted in the soil of public consent. When the soil erodes, the roots give way and the organization can no longer process cases effectively. To their credit, prosecutors took this public backlash to heart and reinvestigated Kanemaru after he resigned from Parliament in the wake of the Sagawa Kyubin scandal. In March 1993, just six months after his controversial summary indictment, Kanemaru was charged again, this time for tax evasion on a grand scale. Prosecutors found that the “shadow shogun” had accumulated extraordinary riches in his homes and offices in Tokyo and Yamanashi, including 100 kg (220 pounds) of gold bars, Sato may have felt liberated to write this extraordinary essay because he knew he could not rise any higher in the prosecutor organization. Sato retired in 1993 after serving as chief of the Sapporo High Public Prosecutors Office. In 1995 he won a seat in the upper house of Parliament, and in 2007 he retired as a member of the Democratic Party of Japan. He died in 2009 at age 76.

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more than 3 billion yen ($30 million) in anonymous bond certificates, and tens of millions of yen in cash (hundreds of thousands of dollars). Prosecutors also found in Kanemaru’s possession a treasure trove of files which revealed that much of his riches had come from construction companies seeking public works contracts through bid-rigging (dango) and bribes. Some of his financiers were also charged, including top executives from seven of the country’s largest construction contractors. This time, Kanemaru himself was interrogated and charged, though he was never convicted after his trial was suspended because of his illnesses. Kanemaru died in 1996 while still under indictment at the age of 81, but in the national election of July 1993—in the wake of his second prosecution—the (conservative) Liberal Democratic Party lost control of Japan’s national government for the first time since 1955. The political machine that Kanemaru captained had been “rotten to the core” since Tanaka Kakuei and his predecessors had built it in the early postwar period.29 In the Sagawa Kyubin scandal, prosecutors played a key role in bringing the LDP down by exposing the party’s connections with the criminal underworld.30 Prosecutors’ actions were encouraged and enabled by public anger expressed through media reports and the criminal process—including the PRC complaint process. This is not to say that criminal prosecution was the only cause (or even the main cause) of the LDP’s fall from power—and the Liberal Democrats would regain control of national government in 1994. There were structural and systemic causes too, including the slower growth of Japan’s economy in the early 1990s and the end of the Cold War around the same time. But the events described in this section helped lead to one of the most important political changes in postwar Japanese history—a change that would lead to political realignments for years thereafter. Prosecutors played a 29

Jacob Schlesinger, Shadow Shoguns: The Rise and Fall of Japan’s Postwar Political Machine (Simon & Schuster, 1997), p. 88. 30 Matthew M. Carlson and Steven R. Reed, Political Corruption and Scandals in Japan (Cornell, 2018), pp. 54–58.

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significant role in this episode in part because they were motivated to act by public criticism of the impunity that political elites had long enjoyed, and PRCs played a crucial role in the process.31

Conclusion: Legitimation, Kickbacks, and Shadow Effects This chapter has described PRC impacts. The evidence is mixed, and it complicates simplistic claims that PRCs are either “do-nothing” institutions that function mainly to legitimate the status quo or “do-much” institutions that are transforming Japanese law and society. Both views are overstated. The effects of PRC review are complicated. On the one hand, PRCs legitimate the criminal justice status quo. Most notably, they approve more than 90% of the non-charge decisions that they review, a percentage which has increased over time. PRCs have also become more deferential to career prosecutors over time, by initiating fewer reviews through their own ex-officio authority, and by issuing fewer “proposals and recommendations” about how to improve prosecution policy and practice. But while PRCs are challenging prosecutors less often than they used to, the challenges they make have become more efficacious, with prosecutors now changing-to-charge in nearly one-quarter of the cases that are kicked back for further review. Moreover, since the PRC Law was reformed in 2009, the acquittal rate in PRC-inspired prosecutions has risen substantially, which indicates that PRC kickbacks are pushing prosecutors to charge more aggressively in the shadow of the possibility of mandatory prosecution. The impacts of legitimation and kickback are important, but the most important PRC effect is invisible. When prosecutors are considering whether to charge a case, they do so with the recognition that if the case is not charged, it could get kicked back for further review. In this sense, prosecutors routinely work in the shadow of the PRC, wondering what 31

Gerald L. Curtis, The Logic of Japanese Politics: Leaders, Institutions, and the Limits of Change (Columbia, 1999), p. 87.

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will happen if they decide not to charge. I call this the PRC’s shadow effect . PRC kickbacks comprise less than one percent of all uncharged cases, but when they occur they result in a “time-consuming and procedurally complex” review process that usually involves a different front-line prosecutor (hira kenji) than the one who originally handled the case. This internal review process invariably involves extensive consultations with managing prosecutors. It also holds reputational risk for the prosecutor who originally handled the case and for the prosecutor who handles the review. Different prosecutors have different attitudes about PRCs. Some prosecutors are so concerned about the possibility of a kickback that they pressure citizens to withdraw complaints. Similarly, some managing prosecutors (kessaikan) require a complaint to be withdrawn before they will approve a non-charge disposition. Yet my interviews suggest that prosecutorial resistance to PRC influence (which used to be widespread) has declined in recent decades. At present, most prosecutors operate in good faith in the shadow of citizen review, as is described by prosecutors who work in the system, and as is borne out by the statistical rise in prosecutorial responsiveness to PRC kickbacks (see Table 3.6). In this important sense, prosecution in Japan has become more democratic.

4 Mandatory Prosecution

The mandatory prosecution (kyosei kiso) reform that took effect in 2009 was caused by the convergence of several social forces, including the victims’ rights movement, the justice system reform movement, and a scandal in Fukuoka that undermined public trust in prosecutors (see Chapter 2). Normatively, this reform was a response to two widespread perceptions: that prosecutors do not charge some cases that they should, and that the PRC’s non-binding recommendations have too little effect on prosecutors’ decision-making. These public perceptions became especially salient after PRC kickbacks failed to change prosecutors’ non-charge decisions in several high-profile cases, including the Nikko Plane Crash case of 1985, the Japan Dentists Federation case of 2004, and violations of Japan’s Political Funds Control Law, such as the Sagawa Kyubin scandal involving Kanemaru Shin that was discussed in Chapter 3.1 1

Asahi Shimbun, “Ichi kara Wakaru: Kensatsu Shinsakai,” October 5, 2010, p. 33.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. T. Johnson, Japan’s Prosecution Review Commission, Palgrave Advances in Criminology and Criminal Justice in Asia, https://doi.org/10.1007/978-3-031-19373-6_4

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This chapter examines how the mandatory prosecution reform works in practice. It focuses on the first ten cases that were charged after the PRC Law was revised to enable citizens to overrule prosecutors. In the first 12 years under the revised law, mandatory prosecution was used only ten times. Contrary to the concerns of critics who feared that empowering PRCs would result in a flood of mandatory prosecutions, PRCs have proceeded cautiously, forcing prosecution only once a year or so, on average. In the decade from 2010 to 2019, PRCs throughout the country issued a total of 56 “prosecution is appropriate” (kiso soto) decisions, but only nine of these dispositions (16%) eventually resulted in a second “prosecution is appropriate” disposition and therefore mandatory prosecution (see Table 3.4). During the same decade, PRCs kicked back a total of 980 cases, and prosecutors voluntarily changed their decision to “charge” in 179 of them—a little more than 18% (see Table 3.5). Thus, the PRC review resulted in 20 times more voluntary charge decisions than mandatory charges. As these figures show, kickback effects are far more common than mandatory prosecutions, but in Japanese media and public opinion the latter are much more salient, not least because several of them have been extremely high profile.2 So, what has happened in the rare instances when people were charged through the mandatory prosecution process? Table 4.1 shows that eight of the first ten cases resulted in acquittal or dismissal of the indictment, while the other two cases resulted in conviction and relatively light punishment: a 9000 yen ($90) fine in the Tokushima Mayor Assault case, and a one-year term of imprisonment suspended for 3 years in the Judo Class Severe Injury case. In total, only two of the fourteen persons charged through mandatory prosecution were found guilty, for a conviction rate of 14%. When the three defendants whose cases did not go to trial are excluded (because they had their indictments dismissed), the conviction rate is slightly higher: 18%. By both measures, the conviction rate in cases of mandatory prosecution is much lower than the 2 Of the ten mandatory prosecution cases discussed in this chapter, five can be called high profile: the Akashi Pedestrian Bridge case, the JR West Amagasaki Rail Crash case, the Rikunzakai case (involving politician Ozawa Ichiro), the Senkaku Islands Ship Collision case, and (the biggest case by far) the Tepco case, which is the subject of the case study in Chapter 5. The other five cases in this chapter received little media coverage.

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99% conviction rates that prevail when Japanese prosecutors control the charging process, as they do in the vast majority of criminal cases.3 Some analysts believe the low conviction rate in cases of mandatory prosecution means PRCs are charging too aggressively, and with little regard for the rights of the criminally accused.4 But empirically, the small number of mandatory prosecution cases—just 10 in 12 years, involving nearly 1000 victims—suggests that PRCs are seldom overzealous. And practically and jurisprudentially, just because a case ends in acquittal does not mean it should not have been charged. Indeed, if prosecutors are not charging difficult cases—and if they are not trying to hold powerful actors accountable—then they are shirking one of their most important duties.5 In this respect, Japan’s reformed PRC can be commended for charging several cases that caused great harm but that professional prosecutors were too cautious (or timid) to try.

Akashi Pedestrian Bridge Case One police officer was charged through mandatory prosecution, and the charge was dismissed because the statute of limitations expired. This was the first case of mandatory prosecution by a reformed PRC. On July 21, 2001, in the city of Akashi in Hyogo Prefecture (about 10 miles from Kobe), there was a large fireworks festival. Summer festivals 3 David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford, 2002), Chapter 7, “Convictions”; and J. Mark Ramseyer and Eric B. Rasmusen, “Why Is the Japanese Conviction Rate So High?,” Journal of Legal Studies, Vol. 30, No. 1 (January 2001), pp. 53–88. 4 Carl F. Goodman, “Prosecution Review Commissions, the Public Interest, and the Rights of the Accused: The Need for a ‘Grown Up’ in the Room,” Pacific Rim Law & Policy Journal , Vol. 22, No. 1 (2013), pp. 1–47; Carl F. Goodman, “The Prosecution Review Commission Process: Historical Analysis and Some Suggestions for Change,” Hastings Journal of Crime and Punishment, Vol. 1, No. 3 (2020), pp. 367–394; Sankei Shimbun, “Kyosei Kiso o Kangaeru: Konnan na Rissho Muzai Aitsugu,” May 18, 2019, p. 31; Sankei Shimbun, “Kyosei Kiso o Kangaeru: Yuzai Tamerau Saibankan,” May 21, 2019, p. 22; and Tokyo Shimbun, “Kyosei Kiso Seido 10-nen Hikari to Kage: Umoreta Jijitsu, Hanmei Keiki,” May 21, 2019, p. 3. 5 Kawai Mikio, “Kiso Soto o Daseru Koto ga Keiji Shiho Kaikaku no Pointo,” Asahi Ronza, August 11, 2015; Stephen Gillers, “A Weak Case, But a Brave Prosecution,” New York Times, March 1, 2000; and Jesse Eisinger, The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives (Simon & Schuster, 2017). The problem of “chickenshit” prosecutors is discussed in more detail in Chapter 5.

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Table 4.1 Mandatory prosecutions, 2009–2021 Case (# of defendants) 1. Akashi Pedestrian Bridge Case (1) 2. JR West Amagasaki Rail Crash Case (3) 3. Okinawa Unlisted Stock Fraud Case (1) 4. Rikuzankai Case (1 = Ozawa Ichiro) 5. Senkaku Islands Ship Collision Case (1) 6. Tokushima Mayor Assault Case (1) 7. Golf Instructor Quasi-Rape Case (1) 8. Judo Class Severe Injury Case (1) 9. Tomei Road Rage Internet Libel Case (1) 10. TEPCO Nuclear Meltdown case (3) Totals: 14 defendants

No. of victims

Years (case, charge, verdict)

Result*

11 dead, 247 injured

2001, 2010, 2013

Charge dismissed

107 dead, 562 injured

2005, 2010, 2013

All 3 acquitted

3

2002, 2010, 2012

Acquitted

Not applicable

2004, 2011, 2012

Acquitted

Not applicable

2010, 2011, 2012

Charge dismissed

1

2009, 2011, 2013

Convicted (fined)

1

2006, 2012, 2014

Acquitted

1

2008, 2013, 2014

Convicted (susp.)

1

2017, 2020, 2021

Charge dismissed

44 dead, 13 injured

2011, 2016, 2019

All 3 acquitted

and 991 victims (162 dead)

Note (1) In the Akashi Pedestrian Bridge case, a PRC concluded in 2004–2005 that “prosecution is appropriate” (kiso soto) for two police officials, but one of them died in 2007, so after a second “prosecution is appropriate” decision was made in 2010, only one officer was subject to mandatory prosecution. (2) In total, 2 of the first 14 defendants charged through mandatory prosecution were convicted, for a conviction rate of 14.3%. When the dismissed indictments in cases 1, 5, and 9 are set aside, the conviction rate is 18.2% (2 of 11 defendants convicted). (3) The defendant in the Tokushima case received a fine of 9000 yen ($90), and the defendant in the Judo case received a one-year prison sentence suspended for three years (shikko yuyo) Source David T. Johnson, Mari Hirayama, and Hiroshi Fukurai, Kensatsu Shinsakai: Nihon no Keiji Shiho o Kaeru ka (Iwanami Shinsho, 2022), p. 130

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of this kind are common in Japan and they often draw huge crowds. After the fireworks ended, around 8:30 PM, as people were crossing a pedestrian bridge to get to a train station, a “crowd avalanche” (gunshu nadare) occurred, killing 11 people (9 children) and injuring 247. Police referred 12 people to prosecutors, and five of them were charged with professional negligence resulting in death and injury: three Akashi city officials, the police officer who had been in charge of crowd control, and a private security employee. All were convicted, and all of the convictions were upheld on appeal. In December 2004, the Kobe District Court sentenced the three city officials to 2.5 years of imprisonment (suspended for 5 years), while the police officer and the private security guard each received an unsuspended sentence (jikkei) of 2.5 years imprisonment. When prosecutors did not charge the Chief and Vice-Chief of the Akashi Police Station (their files had been referred by police), bereaved family members of the victims submitted a complaint to a Prosecution Review Commission in Kobe. The PRC voted that “prosecution is appropriate” (kiso soto) for both police officials, but when the Kobe District Prosecutors Office reconsidered the case, it decided again to suspend prosecution (kiso yuyo). So bereaved family members requested PRC review once more, and the citizen commission voted again that “prosecution is appropriate.” But in June 2006 prosecutors decided not to indict. Because this was before the PRC Law was amended to enable mandatory prosecution, no charges were filed. But the victims’ families did not give up. On the day the amended PRC Law took effect (May 21, 2009), bereaved family members petitioned for review by a PRC for a third time, but by this time the former Chief of Police had died, so review was only requested for the case against the former Vice-Chief of police. After the PRC voted that “prosecution is appropriate” for a third time, the Kobe prosecutors decided once again not to indict, so the PRC gathered for another review (as allowed by the revised PRC Law), and it voted for indictment once more. Thus, on January 27, 2010, after no fewer than four “prosecution is appropriate” decisions, the former Vice-Chief of police was finally forcibly charged (kyosei kiso) with professional negligence resulting in death and injury. His trial in the Kobe District Court started on February 22 of the same year. Three years later, on February 20, 2013, his

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indictment was dismissed when the Kobe District Court ruled that “complicity” between the Vice-Chief and the Akashi police officer who went on trial in 2004 could not be recognized because the statute of limitations had expired. The designated attorneys (shitei bengoshi) who were playing the prosecutor role at trial appealed to the Osaka High Court, but in April 2014 their appeal was dismissed. The designated attorneys then appealed to the Supreme Court, but in July 2016 the appeal was dismissed, and the case against the former Vice-Chief of police was dropped for good.6 The collapse of the Akashi Pedestrian Bridge was a serious incident, killing 11, injuring 247, and adversely impacting the lives of thousands of family members and friends. A great deal of public attention was directed at this case, and it took fifteen years for the legal proceedings to conclude. The core question—was this an accident or a crime?— was answered through the criminal process, but debate continues as to whether the courts got it right. In the end, five people were charged and convicted under the old PRC Law, and one more person was charged under the mandatory prosecution provision of the revised PRC Law, though that charge was dismissed because too much time had elapsed since the bridge collapsed. If mandatory prosecution had been possible when the incident occurred in 2001, there may have been at least two more convictions—of the Vice-Chief of police, whose indictment was dismissed, and of the Chief of police, who died in 2007. As it is, the Kobe PRC told prosecutors to charge police four times. In a legal system that seldom holds police accountable,7 this kind of citizen persistence is impressive.

JR West Amagasaki Rail Crash Case 3 former Japan Railroad executives were charged through mandatory prosecution, and all were acquitted. 6 Matsumiya Takaaki, “Kashitsuhan no Kyodo Seihan Akashi Hodokyo Jiko Kyosei Kiso Jiken Jokokushin Kettei,” Hogaku Semina, No. 743 (2016), p. 123. 7 David T. Johnson, “Policing in Japan,” in James D. Babb, editor, The Sage Handbook of Modern Japanese Studies (Sage, 2015), pp. 222–243.

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This case also occurred in Hyogo prefecture, in the western part of Honshu. At 9:18 AM on April 25, 2005, a train jumped the track on a curve in Amagasaki and crashed into residential buildings. Onehundred-and-seven passengers were killed (including the driver), and 562 people were injured. One cause of the crash was the driver’s excessive speed. At the time, the Japan Railroad (JR) Company had a policy of “day shift education” (nikkin kyoiku), whereby drivers who did not achieve scheduling goals were required to receive “warning lessons” (miseshime kyoiku) so that they would be more punctual. Many analysts believe the young train driver in this case drove too fast because he had fallen behind schedule and because he was concerned about the possibility of discipline from his employer. Another issue in this case was the alleged failure of JR to install equipment on the train line that could have prevented the accident. In December 1996 there had been a train derailment in Hakodate (on the northern island of Hokkaido), but JR West failed to take timely action in response to the safety lessons that should have been learned from that accident.8 On July 8, 2009, the Kobe District Prosecutors Office indicted Yamazaki Masao, the president of JR West who had been in charge of security matters at the time of the Amagasaki crash, but prosecutors did not indict the man who had been president at the time of the incident or two other company executives because (prosecutors said) Yamazaki had not informed them about the possibility of derailment. In January 2012, the trial of Yamazaki ended in acquittal when the Kobe District Court concluded that since the accident was not foreseeable, there had been no reason to install additional safety devices. His acquittal became finalized when prosecutors did not appeal. In October 2009, five months after the amended PRC Law took effect and concurrent with the foregoing criminal process, a PRC in Kobe voted that “prosecution is appropriate” (kiso soto) against the other three JR executives. When prosecutors decided not to indict them, the PRC again concluded that “prosecution is appropriate” for all three, and in

8 Yoko Inoue and Ken Iguchi, “Report Slams Jr West’s Corporate Culture,” Daily Yomiuri, November 20, 2009, p. 3.

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April 2010 the three were subject to mandatory prosecution for professional negligence resulting in death and injury. In July 2012 their trial started in the Kobe District Court. Fifteen months later, in September 2013, the Court acquitted all three when it found that they had not been able to predict the derailment—it had been “unforeseen.” In the wake of Yamazaki’s acquittal, which occurred in January 2012, this outcome was unsurprising to many. Nonetheless, the designated attorneys who were prosecuting these cases appealed to the Osaka High Court. In March 2015 their appeal was dismissed, and that decision was upheld by Japan’s Supreme Court in June 2017. The acquittals in this high-profile case prompted many victims and some observers to call for legal reforms that would make it easier to obtain criminal convictions against corporations and their executives.9 As will be explained in Chapter 5, Japan is hardly the only country in which it is difficult to hold corporations accountable for the harms that they and their agents cause, but the striking disparity in Japanese law between (a) the power of law to obtain convictions against ordinary criminal offenders, and (b) the weakness of legal controls against corporate actors is problematic.10 In this context, the citizens who served on the PRCs that reviewed the JR West Amagasaki Rail Crash case pushed for the prosecution of the former executives, but a panel of three professional judges ruled that there was not enough evidence to convict. This is hardly an outcome unique to this case. Indeed, the indictment and acquittal of Yamazaki came without any direct PRC input, though as explained in Chapter 3, it is possible that the prosecutors who charged him did so in the shadow of potential PRC review.

9 The Japan Times, “JR West Derailment Case Has Victims Calling for Legal Reforms,” June 14, 2017. 10 David T. Johnson, “Kumo no Su ni Shocho Sareru Nihonho no Tokushoku,” Jurisuto, No. 1148 (January 1–15, 1999), pp. 185–189; and David T. Johnson, “‘Kumo no Su’ Shiho to Kensatsu no Katsudo,” in Goto Akira, editor, Keiji Shiho o Ninau Hitobito (Iwanami Shoten, 2017), pp. 29–51.

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Okinawa Unlisted Stock Fraud Case A company president was charged through mandatory prosecution, and he was acquitted. This case received little publicity outside of Okinawa. Shirahama Toshihiro, the president of a securities firm, was accused of offering two people the opportunity to buy stocks not yet listed on the market— stocks which, the criminal complaint alleged, were also unlikely to be listed in the future. In March 2010 Shirahama was arrested for a fraud of 36,000,000 yen (about $360,000). When the Naha District Prosecutors Office decided not to indict him, the three alleged victims requested that a PRC review the case. In June 2010, the Naha PRC concluded that “prosecution is appropriate” (kiso soto), whereupon prosecutors decided again not to indict. The PRC then reviewed the case again and reached another “prosecution is appropriate” disposition, thereby causing the mandatory prosecution of Shirahama for fraud.11 At trial, the designated attorney sought a sentence of seven years, arguing that “citizens’ feeling should not be disregarded” in this case (shimin kankaku o keishi suru koto ga atte wa naranai ). In response, the defense argued that there was no fraud because “the stocks could have been listed” in the future, and it rejected claims about the importance of “citizens’ feelings” by asking whether “a matter that even legal professionals debate” should be judged with the sensibilities of ordinary citizens.12 In the end, the Naha District Court acquitted the defendant, finding that the designated attorneys had not proven that the defendant intended to swindle the victims. In June 2013, the Fukuoka High Court dismissed the designated attorneys’ appeal, and when the Supreme Court dismissed their subsequent appeal in March 2014, the not-guilty verdict was finalized. This case was a white-collar crime prosecution brought by two PRCs in Okinawa after professional prosecutors had decided not to charge. As in the two cases of mandatory prosecution that preceded it, and 11

Separately, Shirahama was charged with taking 12,000,000 yen ($120,000) from another victim through similarly fraudulent means, but this case was dismissed because the statute of limitations had expired. 12 Nihon Keizai Shimbun, March 13, 2012 (evening edition), p. 15.

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like the next two cases that follow, the defendant was accused of criminal acts of elite deviance, and he was acquitted. In Japan and many other societies, the former—prosecution of persons with wealth and influence—seldom happens, while the latter—acquittal of elites who are charged with crime—happens very often indeed.13

Rikuzankai Incident A prominent politician—Ozawa Ichiro of the Democratic Party of Japan— was charged through mandatory prosecution, and he was acquitted. This is the first case in which a politician was subject to mandatory prosecution. And it was not just any elected official; it was Ozawa Ichiro, who is widely considered one of the most powerful “shadow shoguns” in postwar Japanese history, because of his extraordinary backroom influence.14 Ozawa inherited this mantle from elders in the ruling Liberal Democratic Party, especially Tanaka Kakuei and Kanemaru Shin. He came from the northern prefecture of Iwate. His father had been a Minister of Parliament, and Ozawa himself ended up studying at Keio University and Nihon University after he flunked the entrance exam (twice) for Tokyo University. He originally wanted to pursue a career in law, but after failing the bar exam and his father died, he was elected to Parliament in 1969 at the age of 27. He soon became a protégé of Tanaka, who instructed Ozawa in many particulars, and who even found him a wife—Fukuda Kazuko, the eldest daughter of the largest construction company in Tanaka’s home prefecture of Niigata. Thereafter, the construction industry became Ozawa’s main benefactor. Ozawa served in various official and unofficial posts in the LDP, including as Secretary General from 1989 to 1991. But in the wake of the Sagawa Kyubin scandal and the indictment of Kanemaru Shin for tax evasion in 1993 (described in Chapter 3), Ozawa left the LDP and subsequently led a series of other political parties, including the Japan 13

John Braithwaite and Gilbert Geis, “On Theory and Action for Corporate Crime Control,” Crime & Delinquency, Vol. 28, No. 2 (April 1982), pp. 292–314. 14 Jacob Schlesinger, Shadow Shoguns: The Rise and Fall of Japan’s Postwar Political Machine (Simon & Schuster, 1997), p. 172ff.

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Renewal Party, the New Frontier Party, the Liberal Party, the Democratic Party of Japan, the People’s Life First Party, the Tomorrow Party, and the Life Party. In 1993 Ozawa was the power behind the throne when Prime Minister Hosokawa Morihiro became the titular head of a coalition of parties that took away control of national government from the LDP for the first time since 1955. That coalition crumbled after less than nine months in office, but in some ways the period was a groundbreaking time of realignment for Japanese politics. As the leader of political opposition to the LDP and as one of the biggest recipients of political funds in the country, Ozawa attracted the suspicion of law enforcement for many years preceding his indictment, but without ever facing arrest or criminal charges. This changed when Ozawa’s threat to the ruling LDP grew. In 2007 he was the chief strategist behind the Democratic Party of Japan’s victory in the Upper House election, which paved the way for the DPJ victory in the Lower House election of August 2009. Two months later, in November 2009, while Ozawa was Secretary General of the Democratic Party of Japan, accusations were made by a citizen organization against three of his secretaries. The core complaint was that the secretaries had filed false reports about Ozawa’s political budget. In January 2010, one of the secretaries was arrested, and eventually all three secretaries were prosecuted. The charge was making false statements in their budget report in the amount of 2 billion yen ($20,000,000). At the time, this was the largest false reporting charge in Japanese history. Later in 2010 a separate citizens group filed a criminal complaint against Ozawa for violating the Political Funds Control Act. The association called itself “The Group Seeking the Truth” (shinjitsu o motomeru kai ), and it consisted of 10 people (all men), including a former newspaper writer, a former teacher, and a former government worker. All of the group’s members opposed Ozawa’s Democratic Party, and some analysts have criticized it for trying to use the PRC as a weapon in its battle to defeat Ozawa and the DPJ.15 On this view, the PRC was a sword swung at the head of his party. The swing missed, but Ozawa would never regain the power he possessed before he was prosecuted. 15

Asahi Shimbun, “Minshu – Ozawa shiKokuhatsu,” October 6, 2010.

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Because this was a political case, the Special Investigation Division (tokusobu) of the Tokyo District Prosecutors Office took charge of the investigation. In round one the SID decided not to charge Ozawa because of “insufficient evidence” (kengi fujubun). The Group Seeking the Truth then requested that a PRC in Tokyo review the case. In April 2010 the PRC concluded that “prosecution is appropriate” (kiso soto), because Ozawa had misused political funds to purchase land in 2004 and 2005. But in the following month the prosecutors in Tokyo decided once again not to indict him, which led to another PRC review. In October 2010 the PRC found for the second time that “prosecution is appropriate,” and in January 2011 Ozawa was subject to mandatory prosecution.16 After Ozawa’s indictment, the DPJ suspended him from the Party despite claims that mandatory prosecution was not the same as indictment through regular prosecution. His criminal trial in the Tokyo District Court started in October 2011. Six months later he was acquitted when a panel of three professional judges found that the prosecution (by designated attorneys) had not proven he had intended to falsify financial disclosure records. Ironically, the Tokyo District Court also found that the Tokyo District Prosecutors Office had submitted its own falsified reports to the PRC. The one that attracted the most criticism involved an aide to Ozawa who had secretly recorded some of his encounters with SID prosecutors. The recording revealed that “a significant incriminating statement attributed to the aide had, in fact, never been made.” The prosecutor who created the case report claimed that “while recalling my memories [of interviews of the aide] over several days, I mixed up my recollections.”17 This claim seems dubious, for the misstatement was more blatant than a mere mix up could have been. More generally, a survey of more than 1400 prosecutors in 2011 found that 26% had been told by a superior to compose a written statement (chosho) that differed from what a suspect or witness actually said.18 The 16 This case is called “Rikuzankai” because that was the name of the organization that managed Ozawa’s political funds. 17 Daily Yomiuri, “Prosecutor Botched Ozawa Case Report,” December 17, 2011. 18 Tokyo Shimbun, “26% ga ‘Shiji Sareta’: Kyojutsu to Chigau Kenji Chosho Sakusei,” March 11, 2011, p. 1. In the same survey, 82% of prosecutors agreed that “it has become more

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senior prosecutors in charge of this investigation seemed to know the aide’s statements were false but did nothing about them, though they did discipline the investigating prosecutor (sosa kenji), who subsequently resigned but was not charged with any crime. In the end, the Tokyo District Court rejected all of the interview reports and statements taken from this aide (in addition to several statements from other persons) on the grounds that they had been unfairly obtained through improper tactics. But this was small consolation for Ozawa, for the false reports by prosecutors had been a critical part of the evidence that the PRC relied on when it decided to charge him. The designated attorneys appealed Ozawa’s acquittal to the Tokyo High Court, which affirmed it in November 2012. And when the designated attorneys decided not to appeal to Japan’s Supreme Court, his acquittal was finalized. This verdict has been compared to the acquittal of U.S. President Bill Clinton following his impeachment in 1998 for lying under oath and obstructing justice. The charges against them were different, of course, but Ozawa was extremely prominent in Japanese politics. In December 2012, Japanese voters returned the LDP to power in a landslide election that removed the DPJ after three scandal-plagued and ineffectual years. The conservative LDP has maintained control of Japan’s central government ever since. There are two main interpretations of this case. One holds that the PRC-inspired prosecution of Ozawa was a much-needed corrective to the longstanding tendency for Japanese prosecutors to “let the wicked sleep.” On this view, the failure to charge corrupt political leaders creates a climate of impunity that enables elite misconduct to fester.19 The other interpretation is that the PRC in Tokyo was manipulated by prosecutors and fed misinformation so that it could be employed for partisan ends. On this view, Ozawa was the victim of a wrongful prosecution, and the

difficult to obtain statements from suspects and witnesses,” which may help explain why there was pressure from their superiors to compose false statements. 19 David T. Johnson, “Why the Wicked Sleep,” Asian Perspective, Vol. 24, No. 4 (2000), pp. 59–77.

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citizens serving on the PRC were “pawns” who provided cover for prosecutors and conservative politicians in their struggles for power.20 In my view, both of these views capture some of the truth. The mandatory prosecution of Ozawa can be called a “policy investigation” (seisaku sosa) and a “political prosecution” (seiji teki kiso) in that it changed the contours of Japanese politics in ways that were consistent with the conservative preferences of Japan’s most elite prosecutors.21 At the same time, this prosecution was aimed at two seemingly legitimate targets: a man who appeared to be involved in serious acts of corruption,22 and a political system that has often been called “systemically corrupt.”23

Senkaku Islands Ship Collision Case The captain of a Chinese ship was charged through mandatory prosecution, but the charge was dismissed when the defendant returned to China and the indictment could not be delivered to him within the time required by law. This controversial case was entangled with Japan’s domestic politics and international relations. On September 7, 2010, the patrol ship MIZUKI of Japan’s Maritime Safety Agency found a Chinese fishing trawler in Japanese territorial waters, though both Japan and China have conflicting claims to the area, which is known as the “Senkaku Islands” in Japan and the “Diaoyu Islands” in China. The MIZUKI warned the Chinese ship to leave, but the Chinese ship responded by moving toward MIZUKI and ramming it and another MSA cutter (YONAKUNI) that had been sent to escort the Chinese ship out of the area. The Chinese ship and its captain and crew were then taken into custody, but soon the ship and its crew were repatriated to China, while the captain was 20

Carl F. Goodman, “Prosecution Review Commissions, the Public Interest, and the Rights of the Accused: The Need for a ‘Grown Up’ in the Room,” Pacific Rim Law & Policy Journal , Vol. 22, No. 1 (2013), p. 47. 21 Gohara Nobuo and Mori Hono, Kyoko no Hochi Kokka (Kodansha, 2015). 22 Journalists estimated that as of 2011 when Ozawa was subject to mandatory prosecution, he owned at least 3.1 billion yen ($40 million) in real estate and other assets. See Japan Property Central , “Politician Ozawa’s Vast Real Estate Holdings,” January 14, 2012. 23 Matthew M. Carlson and Steven R. Reed, Political Corruption and Scandals in Japan (Cornell University Press, 2018), pp. 21–23.

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arrested for “obstructing the performance of official duties” (komu shikko bogai). He was referred to the Ishigaki Branch of the Naha District Prosecutors Office in Okinawa, but the Chinese government requested his release, claiming that the disputed islands are in fact Chinese territory. In response, Japan extended the captain’s detention, which prompted China’s government to make numerous claims and protests, which were reinforced by widespread public protests in the PRC. China’s government even cut off the supply of rare earth metals that are needed by Japanese businesses in the electronics industry. This incident was defused but not resolved when Japan sent the captain back to China without filing criminal charges against him. Japan’s Minister of Justice, Yanagida Minoru, was a member of the Democratic Party of Japan, which held power at this time.24 Minister Yanagida maintained that the captain’s return to China was not politically motivated, but it is hard to imagine a Japanese captain receiving such soft treatment in similar circumstances. For its part, the Naha District Prosecutors Office announced that the captain was not being charged because the collision with the two Japanese ships was not premeditated. Japan’s government would not release to the media video footage of the collision; they only showed it to certain politicians. But on November 4, 2010, a video of the collision was posted on YouTube by an anonymous person—who later turned out to be an officer of Japan’s Maritime Safety Agency. These developments resulted in more large demonstrations in both China and Japan, and in heightened tensions between the two countries, which had not gotten along well in the first place. In April 2011, a PRC in Naha concluded that “prosecution is appropriate” after a request for review was made by journalists and concerned citizens in Tokyo. In June, Naha prosecutors decided again not to charge the Chinese captain, and in July the PRC reviewed the case and voted for indictment a second time, which resulted in mandatory prosecution. In March 2012 the captain was formally prosecuted, but Article 271-2 of Japan’s Code of Criminal Procedure states that if a charging document 24

Minoru Matsutani, “Yanagida Won’t Meddle with Prosecutors,” Japan Times, October 9, 2010.

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is not sent to a defendant within two months of the charge decision, the charge must be dismissed. According to Japanese officials, the captain had already returned to China and the charging document could not be delivered in time. Hence, in May 2012 the Naha District Court dismissed the charge, thus ending one of the most sensitive moments in recent Sino-Japanese history. The decisive considerations in this case were political, not technical. And the core political question—would prosecution of the Chinese captain serve Japan’s national interest?—was answered in the negative when political actors effectively vetoed the PRC’s decision to charge. This question often arises in politically sensitive cases, and it “is not a question that lawyerly analysis alone can resolve.”25 In this case, a judgment call was made about the nature and fate of Japan’s democracy and about the consequences for international relations with China. In the end, political prudence trumped considerations of criminal culpability, and the controversy passed without escalating into something that could have been much more serious.

Tokushima Town Mayor Assault Case A town mayor was charged through mandatory prosecution, and he was convicted and fined 9000 yen ($90). This was the first case of mandatory prosecution to result in a criminal conviction. The defendant was Kono Toshiaki, the mayor of Ishii, a town of 25,000 in Tokushima Prefecture on the island of Shikoku. According to the victim’s complaint, on the night of July 9, 2009, mayor Kono went to a local bar and either pushed or punched a Filipina hostess in the face. Two days later the victim reported the incident to the Tokushima Prefectural Police, who referred Kono to the Tokushima District Prosecutors Office without making an arrest for assault (boko). In December 2010, prosecutors in Tokushima suspended prosecution (kiso yuyo). The victim then requested that the PRC in Tokushima review the case, and 25 Jack Goldsmith, “Prosecute Trump? Put Yourself in Merrick Garland’s Shoes.” New York Times, June 20, 2022.

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in April 2011 the PRC concluded that “prosecution is appropriate” (kiso soto). But prosecutors decided to suspend prosecution again, because the incident was “minor” and because the mayor’s behavior was “not premeditated.” Prosecutors also stated that if they were to file charges, it would become more difficult for the mayor and the victim to reconcile. There was also the matter of the victim’s own behavior, which may have shaped prosecutors’ thinking. A criminal complaint had been made against her too, for extortion (kyohaku) of a Chinese woman who happened to be the mayor’s favorite hostess. But prosecutors decided to suspend prosecution in that case too. In this context, the PRC reviewed the case against the mayor for a second time and concluded again that “prosecution is appropriate,” thereby initiating the process of mandatory prosecution. On February 8, 2013, the Tokushima District Court convicted the 68-year-old mayor and sentenced him to a “minor fine” (karyo) of 9000 yen (about $90).26 In any one year few criminal fines of this small size are issued in Tokushima, which suggests the Court was trying to send a message that it did not regard this crime as serious. The designated attorney who played the role of prosecutor (Kamiji Daizaburo) had sought a much larger fine of 200,000 yen (about $2000), and when the Court imposed a fine of less than 5% of that amount, he could only wonder why. Kono appealed his conviction to the Takamatsu High Court, where one eyewitness to the assault withdrew his testimony and stated that he had lied in the first-instance trial. Nonetheless, the High Court upheld the guilty verdict, and when the mayor’s appeal to the Supreme Court was dismissed in April 2015, his conviction and sentence were finalized. This was the first case of mandatory prosecution to result in a guilty verdict. It was also the first case of mandatory prosecution in which the criminal charge was for an intentional act of violence. All of the previous five cases involved claims of professional negligence or other white-collar offenses, and four of the previous five involved far more publicity than this one received. Crimes of violence are generally easier to prove than 26

Kyodo News, “Mayor Found Guilty of Assault after Indictment by Designated Lawyers,” February 8, 2013.

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white-collar offenses, and the limited publicity surrounding this case may help explain why the most prominent official in a small town was convicted, and also why he received such a lenient sentence.

Golf Instructor Quasi-Rape Case A golf instructor was charged through mandatory prosecution, and he was acquitted. In December 2006, a 56-year-old golf instructor in southern Japan took a female student to a love hotel, where they had sex. The man was well-known in his community and in golf circles throughout the country. His son was a professional golfer, and the man himself had won tournaments on the senior golf tour. He also ran a youth golf academy on the island of Kyushu, where he had been coaching the student since she was in her final year of middle school. And the man and her family had grown close. At the time of this incident the 18-year-old student was a senior in high school. Her golf game showed promise, and she was hoping to turn pro. When the sexual encounter occurred the age of adulthood in Japan was 20, so legally this woman was a minor (in 2022 Japan’s Civil Law was amended to lower the age of adulthood to 18). Her relationship with the golf instructor was characterized by fear and trust. According to her, when he became angry he was loud and scary, and he exercised much control over her everyday behavior, forbidding her to pierce her ears, wear makeup, or have long hair. He also had significant control over her future. To disappoint him would probably hurt her golf career and might even wreck it. On the day of the sexual encounter in 2006, the man picked the girl up in his sports car, ostensibly to go practice golf. But instead of going to the practice range he drove to a love hotel. When they arrived he asked, “Have you ever been to a place like this before?”, and he said they had come so she could engage in “social studies” (shakai benkyo). On entering the hotel he said, “I brought you here because you lack courage.” And then, according to the girl’s statements, he lectured her for 30 minutes about weaknesses in her golf game and in her character. And then he

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raped her. When the deed was done he ordered her not to tell anyone. It was her first sexual experience, and no form of birth control was used. The victim has said she wanted to resist but was in a state of panic and partial paralysis. Research shows that rape victims often experience a condition called “tonic immobility,” an involuntary state of paralysis (like playing dead) that animals enter into when they sense danger.27 She also said she believed her coach would laugh at her if she tried to tell him to stop. As she put it in an interview in 2012, “The ‘me’ at that time could not even think about opposing him.”28 After leaving the hotel, the golf instructor and his student went to the practice range, but she asked to end the session early on the pretense that she had a stomach ache. A few days later she told a friend about the incident at the hotel, and then the friend told her parents, who became enraged. The parents invited the man to their house, and the man confessed, saying “I’m sorry. Why did I do such a thing? I heard that she was going to graduate from high school and leave the area, and I did not want to lose her.” He even wrote a pledge (seiyakusho) about his behavior going forward, promising that he would not meet this student anymore, appear or play at any more golf tournaments, or coach other junior players. With these and other conditions, the victim and her parents agreed not to file a criminal complaint. In 2010, nearly four years after the rape, the victim filed a complaint with local police in Kagoshima, because the man had broken his promise by continuing to coach other young players, and because she believed that if she did not try to hold him accountable, “he will probably do the same thing to others.” The resulting investigation took one year, after which the man’s case file was sent to prosecutors in Kagoshima, a city of 600,000. The crime was “quasi-rape” (jun-gokan), which was not abolished in a 2017 reform to Japan’s Penal Code that expanded the definition of “rape” to include forced oral and anal penetration, lengthened sentences for some sex crimes, and permitted prosecutors to move

27

Alexandra Brodsky, Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash (Metropolitan Books, 2021). 28 Shukan Asahi, “Higai Josei no Hitsu no Kokuhatsu: ‘Watashi wa Puro Gorufa no Chichi ni Gokan Sareta,” September 21, 2012.

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forward without the victim’s consent.29 But at present, under Article 178-2 of the Penal Code, if a person has sex with a victim who was intoxicated or who was in a mental state that made it difficult to refuse a sexual advance, the act is still regarded as “quasi-rape,” not rape. It is a peculiar expression for a problematic way of conceptualizing consent in sex crime cases. As another Japanese victim of rape has explained, “When I describe the Japanese terminology to English speakers, they are dumbfounded. There is no such thing as ‘sort of ’ rape. Rape is rape.”30 In Kagoshima, the prosecutor (a man in his fifties) who received the case file from police said he would contact the victim soon, but she heard nothing more for six months. When she was finally contacted, it was by a different prosecutor, who explained that the key issue in her case was whether, psychologically, she had been in a position in which she could not resist the man’s acts. The new prosecutor also said there were significant problems of proof because the woman had not been drinking or victimized by violence when the sex acts occurred. One week after receiving this explanation, the victim was told that prosecutors would not file charges, with the prosecutor stressing that “she could have resisted if she wanted to.” In May 2012 the victim filed a complaint with a PRC in Kagoshima, which concluded that “prosecution is appropriate” (kiso soto) because the man had “committed a criminal act while recognizing that the girl was psychologically in a situation of being unable to resist or oppose him because of her feelings of trust and fear.” Thus, the case was kicked back to prosecutors, and this time it was handled by a female prosecutor who told the victim, “I am the type who can speak up in situations like that, so I don’t understand your feeling that you could not run away.” The female prosecutor also pressured the victim to change a statement she had made previously, that she was habitually and “absolutely obedient” to her coach. In August 2012, after kessai consultations within the procuracy, prosecutors decided again not to file charges. Their justification stated that “It is clear the victim did not consent, but we cannot say she was 29 Tomohiro Osaki, “Diet Makes Historic Revision to Century-Old Sex Crime Laws,” Japan Times, June 16, 2017. 30 Ito Shiori, Black Box: The Memoir That Sparked Japan’s #MeToo Movement (The Feminist Press, 2021), p. 148.

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in a position of being psychologically unable to resist.” This led to the PRC’s second “prosecution is appropriate” decision and to the mandatory prosecution of the coach for quasi-rape. In March 2014, the coach’s trial at the Kagoshima District Court ended in acquittal. The Court concluded there was not a clear relationship of “domination and control” between the man and the woman, and it found that the woman was not “in the extremely difficult position of being unable to refuse” the man’s sexual advances. The Court also found that some of the statements made by the victim had changed over time and hence were “unreliable.” The designated attorney appealed the not-guilty verdict to the Miyazaki Branch of the Fukuoka High Court, but in December 2014 the appeal was dismissed. In a puzzling decision, the High Court found that while it had in fact been “extremely difficult for the victim to resist,” the teacher still lacked the requisite intent to be found guilty of quasi-rape. In January 2016 the acquittal was finalized when the victim’s appeal to the Supreme Court was dismissed, but the victim sued the golf instructor in civil court, and the Kagoshima District Court found that her post-traumatic stress disorder (PTSD) had been caused by the defendant’s illegal behavior. In August 2016 the Court ordered the man to pay 3,300,000 yen ($33,000) in compensation. Were it not for the facts revealed through the criminal investigation that was initiated by the PRC’s decision to charge, the victim would not have had sufficient evidence to prevail in that civil suit. As will be explained in Chapter 6, PRCs are often indifferent to the plight of victims of sex crime in Japan. So are Japanese police, prosecutors, and judges—and Japanese society and media as well.31 The Kagoshima case can be called Exhibit A for this longstanding pattern of mistreatment and neglect. The aftermath of this case is telling too. The young woman gave up her dream of a pro golf career and quit playing the game. Years after her “sort of ” rape, she continued to be plagued by fear and anger toward the man she once trusted, and by frustration toward a criminal justice system that victimized her for a second time 31 David McNeill, “I Have No Regrets,” The Asia-Pacific Journal/Japan Focus, Vol. 19, Issue 16 (August 15, 2021), pp. 1–4.

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through its unwillingness to believe her.32 As for the man who confessed and apologized but never was charged, here is what he told a reporter in 2012, shortly before the PRC reviewed his case for the second time: I invited her [to the hotel], and we did it. That’s the truth. At the time she was really cute. But do I look like the kind of guy who would do it forcibly? Even the prosecutor decided not to file charges because he thought there was consent… [When I confessed to her parents] they were really angry. In that situation, if I did not say something they would not have calmed down. I don’t think my conduct was normal behavior, but I also don’t think it was a crime… I did [confess] at the time, but that promise was not legally binding. If you live a long life a lot of people are going to make requests that are hard to refuse… They are free to file a [legal] action. If this case goes to trial everything will become known to all, and she’s the one who will have a hard time. I don’t care. It’s fine with me if this case is concluded in a legal forum.33

Justice comes in degrees; it is not an all-or-nothing value. In light of these remarkable remarks by the golf instructor, one conclusion to reach from this troubling case is that by instituting mandatory prosecution, the PRC in Kagoshima not only gave the victim a little more of the justice she sought, it also gave her rapist more of what he asked for.

Judo Student Severe Injury Case A judo instructor was charged with professional negligence resulting in injury, and he was convicted and sentenced to one year of imprisonment, suspended for three years.

32

Of course, victims of sex crime are often disrespected and discredited in the United States and other countries as well. See Deborah Tuerkheimer, Credible: Why We Doubt Accusers and Protect Abusers (Harper Wave, 2021); and Barbara Bradley Hagerty, “An Epidemic of Disbelief: Why the Police Fail to Catch Serial Rapists,” The Atlantic, July 15, 2019. For more discussion of this subject, see Chapter 6. 33 Shukan Asahi, “Higai Josei no Hitsu no Kokuhatsu: ‘Watashi wa Puro Gorufa no Chichi ni Gokan Sareta,” September 21, 2012.

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This was the second case of mandatory prosecution to result in a guilty verdict, and the only one to result in a prison sentence, albeit one that was suspended. In May 2008 in the mountainous prefecture of Nagano, a judo instructor used a double-handed single-sleeve throwing technique (known as taitoshi) against a boy in his sixth-grade class. The instructor was 5 feet, 11 inches, and 176 pounds; the boy was 4 feet, 10 inches, and 95 pounds. The throw caused acute subdural hematoma and severe damage to the boy’s brain and neck. In Japanese, judo means “the gentle way,” but injury and death are common in judo classes in the country. From 1983 to 2016, at least 121 persons died in judo classes in Japanese schools (an average of 4 deaths per year), and there were countless more injuries. This number does not include deaths that occurred in extracurricular dojos (schools for martial arts). Judo is also popular in the United States, France, Australia, and Britain, which have a combined population of 487 million—triple that of Japan. But in those countries, “not a single child has been reported to have died from judo in the last 20 years.”34 No other country in the world has as many judo casualties as Japan. One contributing cause of Japan’s judo problem is that teachers tend to be good at judo but not at dealing with the physical and psychological needs of the youngsters that they teach. Sexual harassment and abuse are also problems in Japan’s macho and militaristic judo culture. Some observers even believe there is “no future for judo” in Japan unless these issues get addressed. Public awareness of the problems has grown in recent years, but in 2006, two years before the judo accident in Nagano, Japan’s government changed the nation’s Basic Education Act to make it mandatory for all junior high and senior high-school students to take martial arts courses in school. The new policy was implemented in 2012. It was in this context that a PRC in Nagano instituted mandatory prosecution. Initially, the Nagano District Prosecutors Office decided not to indict the judo instructor because of “insufficient evidence” (kengi fujubun), but the Nagano PRC reviewed the case in July 2012 and concluded 34

Associated Press, “Judo in Japan: Getting Unwanted Scrutiny for Abuse, Violence,” October 9, 2020.

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that “prosecution is appropriate.” In December of that year prosecutors decided again not to indict for “professional negligence resulting in injury” on the grounds that they could not prove the instructor should have been able to predict the result of his behavior—the boy’s injury. So this second non-charge decision was also based on “insufficient evidence.” In 2013, the Nagano PRC voted again by a supermajority of at least 8 to 3 that “prosecution is appropriate,” thereby initiating the process of mandatory prosecution. The PRC reasoned that the judo instructor possessed more medical knowledge than the average person and therefore should have been able to foresee the dangers of his throwing technique. The PRC also concluded that based on the boy’s inexperience at performing the passive judo role (ukemi) and the big size differential between the boy and the instructor, the instructor should have been more careful and the accident could and should have been prevented. Interestingly, the boy’s mother did not lobby for prosecution. She said she had “no special thoughts about forcible indictment” and “no desire to see criminal sanctions imposed on the instructor.” At the same time, the mother stressed that she did want other parents or children to go through what she and her son had experienced.35 In August 2013 the instructor’s criminal trial commenced in Nagano District Court. The main issue was the defendant’s claim that the boy’s brain damage was “unforeseeable.” In April 2014 the defendant was convicted and sentenced to one year of imprisonment, suspended (shikko yuyo) for three years (so he was not incarcerated). At sentencing, the presiding judge implored the defendant to tell his judo instructor colleagues that serious accidents can occur even without striking the head, and the victim’s mother stressed the importance of continuing the movement to raise public awareness of judo’s risks.36 When neither the defense nor the designated attorney appealed, the guilty verdict and sentence were finalized. Other judo casualties have filed complaints with PRCs, but with different outcomes. For example, a young woman named Kurumatani Yuko died in 2018 after being in a coma for 15 years because of the 35 36

Mainichi Shimbun (Nagano version), March 8, 2013, p. 25. Asahi Shimbun, May 16, 2014.

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head trauma she suffered in a judo lesson in junior high school when she was 13 years old. She had been thrown repeatedly by a senior highschool student and male leader (danshi bucho) of the judo club despite the girl’s repeated requests to stop. The leader was 5 feet, 11 inches, and 264 pounds, and the incident occurred in a school that frequently had no judo instructor or adult supervisor present during lessons. After prosecutors in Fukushima decided not to indict the male leader or school officials, the victim’s parents filed a complaint with a PRC, which eventually rendered a decision that “prosecution is appropriate.” But no charges were ever filed. The victim’s parents did file a civil lawsuit, and the city and school were eventually ordered to pay 156 million yen ($1.56 million) while the male leader was ordered to pay 3 million yen ($30,000) in compensation for their daughter’s injury and death. Criminal prosecution sometimes stimulates reporting about social problems that are neglected and ignored. In turn, media reports can mobilize public opinion and motivate policymakers to make constructive changes. The tragedy in Nagano and the ensuing publicity had some positive effects in Japan’s judo world. Most notably, accident prevention has become a higher priority in judo instruction in Japanese schools, and judo teachers are now being trained and encouraged to prevent accidents of the kind that forever changed one Nagano family’s life. But mandatory prosecution in Nagano was not a magic bullet, for much remains wrong in Japan’s conservative culture of judo. Still, there are silver linings in this sad case, and there is a general lesson as well. Rights do not come from God, nature, logic, or law. Ultimately, they arise out of particular experiences with injustice.37 This insight can be hard and even harsh, but it is an important truth about progressive change.

Tomei Road Rage Internet Libel Case One man was charged through mandatory prosecution, but the case was dismissed when he committed suicide before his trial started. 37

Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (Basic Books, 2009).

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This libel case stemmed from a road rage incident on the Tomei Highway in 2017, when Ishibashi Kazuho, a 25-year-old construction worker from Kita Kyushu (in Fukuoka Prefecture), pulled his car in front of a station wagon and forced it to stop on an outbound lane of the highway. The station wagon was rear-ended by a large truck, leaving the married couple in it dead and their two daughters seriously injured. Ishibashi’s rage was apparently precipitated by an argument he had with the station wagon’s driver sometime earlier that day. After this road rage incident, eleven people from nine different prefectures in Japan began spreading false rumors on the internet that the driver was the son of a prominent businessman with the same last name, even though the driver had no relationship with the businessperson, who owned the Ishibashi Construction Firm in Kita Kyushu. The owner and his company received hundreds of threatening emails and phone calls, prompting the owner to file a complaint for libel with the local prosecutor’s office against all eleven people. When none of them was charged, the owner filed a complaint with a PRC in Kokura, which ruled that “prosecution is appropriate” for 9 of the 11 (one of the accused had died and another had apologized). In response, prosecutors in Kokura decided to charge one person on an “at-home” basis (zaitaku kiso), and five persons were charged through summary prosecution (ryakushiki kiso). Each of these defendants would be subject to a fine of up to 300,000 yen ($3000). Prosecutors also decided that the other three persons would not be charged because they had settled with the victim or made restitution. In July 2020 the PRC concluded that “settlements are an entirely civil resolution” and decided that “prosecution is appropriate” for one of the three uncharged persons. Since this was the second such disposition for the man, he was subject to mandatory prosecution. But after he was charged and before his trial started, the defendant committed suicide, and the charges against him had to be dismissed. As in the United States and many other countries, Japan has a long history of road rage incidents. A 2020 survey found that nearly half of the Japanese drivers have been embroiled in one, and 98% of them did

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not report it to the police.38 In 2019, Japanese police handled more than 15,000 cases of road rage—more than 40 per day, on average. And in 2020 Japan’s Road Traffic Act was revised to expand the scope of punishable acts of dangerous driving resulting in death or injury by including aggressive tailgating, sudden braking, swerving between lanes, and stopping in front of other drivers to block their path. The road rage libel case in Kokura resembles the Akashi Pedestrian Bridge case (case 1) and the Senkaku Islands Ship Collision case (case 5) in that none of these mandatory prosecutions went to trial because the criminal charges were dismissed. Moreover, this case has irony as well as tragedy, for a person accused of libel committed suicide at least partly because he felt his own reputation had been ruined by the charge filed against him. Most fundamentally, this case illustrates the gravity of criminal charges for accused persons in Japan. In the United States, 49% of black males, 44% of Hispanic males, and 38% of white males have been arrested at least once by age 23 (in the mid-1960s the aggregate figure was 22%).39 When the criminal process and sanctions are used this frequently, being subject to prosecution is sometimes considered an ordinary rite of passage. In Japan, by contrast, where arrest and indictment are far less common, criminal charges are often devastating to those being charged—and to the people close to them as well.40 In this sense, the suicide in this libel case reminds us of the awesome powers of the criminal sanction—and of the extraordinary power wielded by both prosecutors and PRCs.

38

The Mainichi, “48% Victims of Road Rage, Only 2% Told Police: Central Japan Police Survey,” September 10, 2020. 39 Robert Brame, Shawn D. Bushway, Ray Paternoster, and Michael G. Turner, “Demographic Patterns of Cumulative Arrest Prevalence by Ages 18 and 23,” Crime & Delinquency, Vol. 60, Issue 3, pp. 471–486. 40 Mari Kita, “Proxy Justice: Families of Offenders in Contemporary Japan,” PhD dissertation, Department of Sociology, University of Hawaii at Manoa, May 2018, pp. 1–198.

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TEPCO Nuclear Meltdown Case Three former executives of the Tokyo Electric Power Company were charged with professional negligence resulting in death and injury following the triple disaster in Fukushima (earthquake–tsunami–nuclear crisis) on March 11, 2011. All were acquitted, but the designated attorneys have appealed to the Tokyo High Court and a ruling is expected in January 2023. For more detailed analysis of this case, see Chapter 5. The main legal issue in this case concerns the foreseeability of the giant tsunami, which reached a maximum height of 15.5 meters. Most informed observers believe the acquittals will be upheld, and a June 2022 decision by Japan’s Supreme Court (holding that the Japanese government is not civilly liable for the nuclear crisis) seems to point toward the same conclusion.41 None of the acquittals in other mandatory prosecution cases have been appealed, but when prosecutors appeal acquittals in ordinary criminal cases (as they do about 30% of the time), “not guilty” becomes “guilty” in nearly half of them. The likelihood of obtaining convictions on appeal in the TEPCO case seems substantially lower than that. Since this is the most prominent, controversial, and consequential case of mandatory prosecution, it is the subject of an extended case study in Chapter 5. Here, I will simply summarize two lessons from this case.42 First, the TEPCO trial and the criminal process that preceded it revealed many facts that are proving useful to plaintiffs in their ongoing civil lawsuits with TEPCO and the Japanese government. Winning the civil cases is difficult, but plaintiffs have prevailed in many of them, and more are still being litigated. The TEPCO prosecutions also clarified the truth about the Fukushima meltdowns by exposing many of the company’s claims as humbug and hokum. We now know that TEPCO had many opportunities to increase safety at the aging Fukushima plants,

41

Mari Yamaguchi, “Japan’s Top Court Says Government Not Responsible for Fukushima Disaster,” The Associated Press, June 17, 2022. 42 For more analysis of this case, see also David T. Johnson, Hiroshi Fukurai, and Mari Hirayama, “Reflections on the TEPCO Trial: Prosecution and Acquittal After Japan’s Nuclear Meltdown,” The Asia-Pacific Journal/Japan Focus, Vol. 18, Issue 2 (January 15, 2020), pp. 1–35; and David T. Johnson, Mari Hirayama, and Hiroshi Fukurai, Kensatsu Shinsakai: Nihon no Keiji Shiho o Kaeru ka (Iwanami Shinsho, 2022), pp. 161–169.

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and that they had many good reasons to believe more safety was imperative. But safety was not the company’s top priority. The Fukushima disaster also showed that nuclear accidents can happen in Japan and that the status quo for nuclear safety is untenable. These conclusions became clear partly because of the power of the criminal process to reveal facts that otherwise would have remained disguised by corporate and governmental disingenuousness. The second TEPCO lesson concerns the under-prosecution of whitecollar crime, which is a problem in many societies, including Japan. Prosecutors should try to build important cases, even when that is difficult.43 But in Japan that rarely happens. The result is injustice and failures of deterrence that allow white-collar crime to spread. The country’s routine failure to prosecute serious white-collar offenders also illustrates a general truth about the way criminal law works in the world. It is often like a cobweb, which catches small flies but lets wasps and hornets break through.44

Conclusion With just ten cases in twelve years, mandatory prosecution has seldom been used since the PRC was empowered in 2009 to issue binding criminal charge decisions. When mandatory prosecution has been employed, it mostly was used to charge “white-collar crimes,” which are classically defined as offenses “committed by a person of high social status and respectability in the course of his occupation.”45 Scholars of white-collar crime distinguish between organizational crimes committed by corporate and government elites in their pursuit of organizational objectives (such as the dumping of industrial waste or the manipulation of stock prices), and occupational crimes committed by individuals in the course

43

Jesse Eisinger, The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives (Simon & Schuster, 2017). 44 This aphorism is often attributed to the Anglo-Irish satirist Jonathan Swift (1667–1745). 45 Edwin H. Sutherland, “White-Collar Criminality,” American Sociological Review, Vol. 5, No. 1 (February 1940), pp. 1–12.

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of their work (such as fraud and embezzlement).46 By these definitions, seven of the first ten mandatory prosecutions were for white-collar crime (cases 1, 2, 3, 4, 5, 8, and 10), and five of them involved organizational crime (cases 1, 2, 3, 4, and 10). Of the remaining three cases (6, 7, and 9), two involved persons in positions of authority who exploited their positions of trust: the mayor who assaulted an immigrant woman in Tokushima, and the golf instructor who had sex with a high-school girl. Only one of the first ten mandatory prosecution cases—the road rage libel case—involved allegations that, if proven, would have been neither a white-collar crime nor an abuse of a position of authority. In this sense, mandatory prosecution in Japan has focused mainly on harmful acts committed by people in positions of power. As of 2022, mandatory prosecution has never been instituted against the kinds of street crime and drug offenders who comprise the large majority of Japan’s prison population. In this sense too, the empowered PRC has not been overzealous. Mandatory prosecution led to criminal conviction in only two cases, involving a female victim from the Philippines who worked as a bar hostess (case 6), and a 12-year-old boy who was learning judo (case 8). Neither conviction resulted in a prison sentence. More broadly, no criminal convictions resulted from the mandatory prosecution of organizational crime suspects even though these incidents led to a large number of deaths (151) and injuries (578). Mandatory prosecution takes a long time. After these ten incidents occurred, it took an average of 5 years for PRCs to institute forcible indictments and an average of 7 years to reach a verdict. Japanese criminal justice is often called slow and “precise” (seimitsu shiho), but it is substantially more deliberate when handling cases that involve organizations and elites than it is in ordinary cases. This is not unique to Japan, of course, but it is a sign that the promise of equality under the law often fails to be realized in practice. Some of the harmful consequences of these cases could have been prevented. In the Akashi bridge collapse, local police, city government, 46

James William Coleman, The Criminal Elite: Understanding White-Collar Crime (Worth Publishers, 2006).

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and a security firm had been forewarned of the risk of a stampede because in the previous year 3000 people had surged onto the same bridge during a fireworks celebration, creating a dangerous scene like the one that would lead to 11 deaths in 2001. Similarly, the criminal investigation in Amagasaki revealed that JR West had decided (for costcutting reasons) not to install an automatic system to warn speeding drivers. The company was also imposing penalties on drivers who failed to operate their train on time. The driver who caused the derailment in 2005 was speeding to make up time, and the mandatory prosecution revealed that JR West had “a corporate culture that prioritized protection of the company’s interests over those of the accident victims as well as the public sentiments.”47 The next chapter will show that the nuclear disaster in Fukushima was caused by similar cost-cutting measures and regulatory failures. The low conviction rate at trial following mandatory prosecution has led some critics to contend that PRCs are charging cases too aggressively. But ten cases in twelve years is hardly an avalanche of prosecution, and when these cases are studied there are few signs that PRCs are overdoing it. The main exception is the indictment of Ozawa Ichiro (case 4), but even here there is room for debate as to whether the PRC was manipulated for political purposes. My own view is that politically motivated citizen groups and professional prosecutors pushed the PRC to charge this “shadow shogun,” but Ozawa was probably involved in serious criminal conduct even though it was not proven at trial.48 In ordinary criminal cases, Japan’s high conviction rate reflects a cautious and conservative charging policy that leaves many victims of crime feeling abandoned by the prosecutors who are supposed to be their allies and advocates. The victims’ rights movement has encouraged victims to voice their dismay about these desertions, but prosecutors continue to maintain an extremely high conviction rate in part because they remain willing to sacrifice a victim’s day in court. This cautious

47 Yoko Inoue and Ken Iguchi, “Report Slams JR West’s Corporate Culture,” Daily Yomiuri, November 30, 2009. 48 Jacob Schlesinger, Shadow Shoguns: The Rise and Fall of Japan’s Postwar Political Machine (Simon & Schuster, 1997).

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charging policy has many welcome consequences, including an incarceration rate that should be the envy of the world. But victims bear a burden. From their perspective, the premise of the present prosecutorial policy—to charge only sure winners—should be called into question, because a courtroom loss, even if predictable, does not mean the case should not have been brought.49 Nor does an acquittal mean criminal prosecution had no value, for trials reveal evidence, tell stories, and teach many things, such as how to judge and what to condemn.50 The cautious and conservative charging policy of Japan’s professional prosecutors often sacrifices these values, while the PRC’s willingness to bring some hard cases to trial increases the likelihood that important issues (political corruption, sexual assault, road rage, and so on) will be seriously discussed. Those who criticize PRCs for mandating prosecution ought to wonder whether their words are discouraging difficult but necessary actions.

49

Stephen Gillers, “A Weak Case, But a Brave Prosecution,” New York Times, March 1, 2000. David Garland, Punishment and Modern Society: A Study in Social Theory (University of Chicago Press, 1990), p. 252. 50

5 The TEPCO Prosecutions and Acquittals

On September 19, 2019, three former executives of the Tokyo Electric Power Company (TEPCO) were acquitted by a panel of three judges in the Tokyo District Court.1 The defendants were former Chairman Katsumata Tsunehisa (age 79), and former Vice Presidents Takekuro Ichiro (73) and Muto Sakae (69), who had shared responsibility for the company’s nuclear energy sector. They were criminally charged for failing to prevent the meltdown of the Fukushima Daiichi nuclear power plant, which was precipitated by the earthquake and tsunami of March 11, 2011. The tsunami killed 18,000 people, and 400,000 more were forced to evacuate their homes in order to escape the nuclear fallout.2 The 1 David T. Johnson, Hiroshi Fukurai, and Mari Hirayama, “Reflections on the TEPCO Trial: Prosecution and Acquittal After Japan’s Nuclear Meltdown,” The Asia-Pacific Journal/Japan Focus, Vol. 18, Issue 2, No. 1 (January 15, 2020), pp. 1–35. 2 For discussions of the health effects of radiation, see G. A. Thomas and P. Symonds, “Radiation Exposure and Health Effects—Is It Time to Reassess the Real Consequences?,” Clinical Oncology, Vol. 28, Issue 4 (April 2016), pp. 231–236; and Rowan Hooper, “Psychology Is Where Real Radiation Risks Lie,” Japan Times, August 15, 2015.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. T. Johnson, Japan’s Prosecution Review Commission, Palgrave Advances in Criminology and Criminal Justice in Asia, https://doi.org/10.1007/978-3-031-19373-6_5

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three defendants were accused of “causing death or bodily injury through negligence in the pursuit of social activities” (gyomujo kashitsu chishisho), which is defined by Article 211 of Japan’s Penal Code as follows: A person who fails to exercise due care required in the pursuit of social activities and thereby causes the death or injury of another shall be punished by imprisonment with or without work for not more than 5 years or a fine of not more than 1,000,000 yen [$10,000]. The same shall apply to a person who through gross negligence causes the death or injury of another.

The 3/11 earthquake was the most powerful ever recorded in Japan and the fourth most powerful in the world since modern record keeping started at the turn of the twentieth century. The tsunami it precipitated reached heights up to 40 meters (130 feet), and in some places the colossal swell traveled at 700 kmh (435 mph) and surged 10 kilometers (6 miles) inland. The only nuclear accident as serious as the meltdowns at Fukushima was the 1986 disaster at Chernobyl in the Ukrainian Soviet Socialist Republic. Although the disaster at Fukushima was severe, it was not precipitated by a low-probability event. Massive earthquakes and tsunamis have been assaulting the northeastern coast of Japan for centuries—in 869, 1611, 1793, 1896, and 1933. The size of the tsunami in 2011 was almost the same as the one in 1933.3 In law and politics there have been many cross-cutting responses to the meltdowns in Fukushima.4 Japan stopped using nuclear power for much of 2011 and 2012, and its usage has remained low since, providing just 4.3% of Japan’s total power output as of 2020, compared with almost 30% at the time of the triple disaster. Only a small number of reactors have been restarted since they were shut down after 3/11. 3

Lawrence Repeta, “Could the Meltdown Have Been Avoided?,” Foreign Policy eBook, Tsunami: Japan’s Post-Fukushima Future, pp. 183–194; and J. Mark Ramseyer, “Why Power Companies Build Nuclear Reactors on Fault Lines: The Case of Japan,” Theoretical Inquiries in Law, Vol. 133, Issue 2 (2012), pp. 457–486. 4 Richard Samuels, 3.11: Disaster and Change in Japan (Cornell University Press, 2013); and Daniel P. Aldrich, Black Wave: How Networks and Governance Shaped Japan’s 3/11 Disasters (University of Chicago Press, 2019).

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Efforts to restart more by the governments of Prime Ministers Abe Shinzo and Suga Yoshihide were blocked by a deep distrust of nuclear power generation among the Japanese public. There were also foreign effects, as several countries suspended or ended their use of nuclear power, including Germany, Italy, Belgium, and Taiwan, while China temporarily suspended its plan to expand its use of nuclear energy. New nuclear safety laws were established in Japan, China, South Korea, and other countries, but in most of East Asia major changes in the field of nuclear power seem unlikely because of its “sunk-cost structure” and its deep “embeddedness in national energy plans.”5 A recent draft of Japan’s Basic Energy Plan for 2030 called for 20 to 22% of the nation’s power to be generated by nuclear power.6 As for administrative law, Japan’s lax regulatory system was reformed after 3/11, with the Nuclear and Industrial Safety Agency (NISA) and the Nuclear Safety Commission (NSC) replaced by a more autonomous Nuclear Regulation Authority (NRA).7 Government supervision of the nuclear industry was also transferred from the ministry responsible for promoting it (the Ministry of Economy, Trade, & Industry, or METI) to the Ministry of Environment (MOE), which could result in greater emphasis on safety and less on profit and the production of power (time will tell more). In civil law, dozens of collective lawsuits have been filed against TEPCO and various government agencies and officials, in addition to some 400 individual lawsuits filed nationwide by the victims of the Fukushima meltdown.8 Many of the actions have resulted in judgments 5

Timothy Fraser and Daniel P. Aldrich, “East Asia’s Nuclear Policies: Fukushima’s Effect or a Nuclear Renaissance?,” Georgetown Journal of Asian Affairs (Winter 2019), pp. 58–65. 6 Asahi Shimbun/Asia & Japan Watch, “Editorial: Cleaner Energy Vision Marred by Burden of Nuclear Power,” July 24, 2021. 7 Jeff Kingston, “Mismanaging Risk and the Fukushima Nuclear Crisis,” The Asia-Pacific Journal: Japan Focus, Vol. 10, Issue 12, No. 4 (March 2012), pp. 1–25. 8 For summaries of TEPCO-related litigation, see Paul Jobin, “Some 40 Years to Clean Up Fukushima: A View from Ongoing Court Battles,” Georgetown Journal of Asian Affairs (Winter 2019), pp. 73–81; and Paul Jobin, “The Fukushima Nuclear Disaster and Civil Actions as a Social Movement,” The Asia-Pacific Journal/Japan Focus, Vol. 18, Issue 9, No. 1 (May 2020), pp. 1–30. For a description of Japan’s nuclear liability system, see Eric A. Feldman, “Compensating the Victims of Japan’s 3–11 Fukushima Disaster,” Asia-Pacific Law & Policy Journal , Vol. 16, No. 2 (2015), pp. 127–157. And for an account of Japan’s alternative dispute resolution

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for the plaintiffs,9 but the number of civil lawsuits brought against TEPCO remains “far fewer than the number brought in similar cases in the U.S.,” such as the Gulf of Mexico oil spill by Deepwater Horizon BP in 2010.10 In June 2022, Japan’s Supreme Court ruled that the national government is not liable for the Fukushima nuclear crisis on the grounds that the tsunami could not have been predicted. The top court’s decision reversed three High Court decisions that had declared the government responsible, and it was widely criticized for ratifying the government’s efforts to avoid responsibility for ensuring the safety of nuclear plants.11 One month later, the Tokyo District Court ordered four former TEPCO executives (Katsumata, Takekuro, and Kuro, as well as a former president of the company named Shimizu Masataka) to pay 13.321 trillion yen ($97 billion) in compensation to 48 shareholders for failing to implement adequate anti-tsunami measures at the Fukushima No.1 nuclear power plant, which led to the triple meltdown and caused huge financial losses for the utility. This was the largest award ever made in a civil suit in Japan, but some observers believe the amount will be reduced or the decision will be overturned on appeal.12 And then there is the criminal sanction and the criminal process through which it is imposed. Many Japanese believed that certain actions and inactions of TEPCO executives and Japanese government officials system for nuclear power-related damage disputes, see Daniel H. Foote, “Japan’s ADR System for Resolving Nuclear Power-Related Damage Disputes,” Tokyo Daigaku Hoka Daigakuin Ro Rebyu, Vol. 12 (November 2017), pp. 102–126. 9 Ben Dooley, Eimi Yamamitsu, and Makiko Inoue, “Fukushima Nuclear Disaster Trial Ends with Acquittals of 3 Executives,” New York Times, September 19, 2019. For a compilation of Fukushima-related litigation that is regularly updated, see “Datsugenpatsu Bengodan Zenkoku Renrakukai,” at http://www.datsugenpatsu.org/bengodan/list/. 10 Tomomi Yamaguchi and Ruiko Muto, “Muto Ruiko and the Movement of Fukushima Residents to Pursue Criminal Charges Against TEPCO Executives and Government Officials,” The Asia-Pacific Journal/Japan Focus, Vol. 10, Issue 27, No. 2 (July 2012), pp. 1–22. 11 Asahi Shimbun/Asia & Japan Watch, “Editorial: Top Court Ignores State’s Duty to Do Utmost to Secure Nuclear Safety,” June 18, 2022; and The Mainichi, “Editorial: Top Court’s Fukushima Nuclear Crisis Ruling Does Not Excuse Government,” June 18, 2022. 12 The 48 shareholders had sued five former TEPCO executives, seeking a total of 22 trillion yen in compensation, but one of them (Komori Akio, who was director of the Fukushima plant at the time of the accident) was absolved of financial responsibility. See Kyota Tanaka, “Former TEPCO Executives Ordered to Pay $97 Billion to Shareholders,” The Asahi Shimbun/Asia & Japan Watch, July 13, 2022.

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violated the criminal law. When prosecutors decided not to file charges, some turned to Prosecution Review Commissions in an effort to get meaningful punishments imposed on the most culpable offenders. This was no easy task, for as we saw in Chapter 4, in Japan as in many other countries, white-collar criminals seldom get charged and punished, and the public is not protected from some of society’s most harmful offenders. The central question in this chapter is what, if anything, criminal prosecution was good for in the TEPCO case. I argue that despite the acquittal of the three former executives, Japan’s criminal process did considerable good in this case, chiefly by revealing facts that were previously unknown, concealed, and denied, which helped clarify important truths about the Fukushima meltdown. Moreover, even when the criminal process failed in the TEPCO case, it did so in ways that are common in other systems of criminal justice, for justice often fails in white-collar crime cases, regardless of the country. This is no consolation to the victims and survivors of 3/11, but it does obligate us to ask why it is so hard to hold corporations and their executives accountable for the harms that they cause. Thus, while this chapter focuses on the limits of the criminal sanction in a case that some regard as the biggest crime in postwar Japanese history, its main point applies more broadly, for white-collar crime may well be “the greatest crime problem of our age.”13 This chapter proceeds in four parts. Section one describes the complicated process of criminal prosecution through which charges were filed against the three former TEPCO executives. The reformed Prosecution Review Commission played a critical role in this case by instituting mandatory prosecution after prosecutors had originally decided not to charge anyone. Section two then explains why the Tokyo District Court decided to acquit and how its reasoning is unpersuasive. Section three summarizes some of the diverse reactions to the TEPCO acquittals. Many observers were harshly critical of the not-guilty verdicts, but prosecutors essentially said “we told you so” when the court concluded there

13

James William Coleman, The Criminal Elite: Understanding White-Collar Crime (Worth Publishers, 2002), p. xi.

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was insufficient evidence to convict. In contrast, I will argue that a courtroom loss does not necessarily mean the defendants should not have been charged. Indeed, the trial outcomes in this case are troubling but unsurprising, for acquittals are common in white-collar crime cases14 —and in cases initiated by PRCs too. The final section of this chapter identifies several lessons to learn from the TEPCO prosecutions and acquittals. Foremost among them are the limits of the criminal sanction and the difficulty of controlling white-collar crime in the modern world.

Prosecutions The earthquake and tsunami of March 11, 2011 resembled large natural disasters that had occurred many times before near the northeastern coast of Japan. In this sense, the chain of events leading to 3/11 can be traced back centuries. But societies often forget tsunamis of the past and neglect their implications for the present. As geologic oceanographer Chris Goldfinger has observed, “It seems that the more ‘advanced’ a society becomes, the shorter its memory.”15 In a fascinating and frightening essay, another analyst summarizes science that suggests an earthquake and tsunami—“the really big one”—will sooner-or-later “destroy a sizable portion of the coastal Northwest” of the United States. In her view, the question is not whether but when, and northwestern North America is utterly unprepared for it—much as Japan was unprepared for 3/11.16 The story of the nuclear meltdowns at Fukushima is also tied to Japan’s pursuit of rapid economic growth in the postwar period, for there was a “boundless appetite for power needed to drive [Japan’s] economy.”17 But the first focus of this section is not the earthquakes and tsunamis of the distant past or the energy imperatives of 14

John C. Coffee, Jr., Corporate Crime and Punishment: The Crisis of Underenforcement (BerrettKoehler Publishers, 2020), pp. 57–76. 15 Quoted in Bonnie Henderson, The Next Tsunami: Living on a Restless Coast (Oregon State University Press, 2014) (describing a tsunami that struck the Oregon coast in 1964 after a magnitude 9.2 earthquake in Alaska). 16 Kathryn Schulz, “The Really Big One,” The New Yorker, July 13, 2015. 17 Lawrence Repeta, “Could the Meltdown Have Been Avoided?,” in Jeff Kingston, editor, Tsunami: Japan’s Post-Fukushima Future (Foreign Policy, 2011), p. 192.

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Japan’s postwar economy. It is the cascade of executive, engineering, and regulatory failures that occurred in the decades preceding the Fukushima disaster.18 The meltdown of three reactor cores in Fukushima is partly the story of the promotion of nuclear technology through the cultivation of a “myth of safety”—a belief that nuclear accidents cannot and will not happen. The main myth-makers were agents of TEPCO and of the Japanese government. But nuclear power is an energy choice that gambles with disaster. In this sense, the meltdown at Fukushima was not a “Japanese” accident. It was an accident that happened to occur in Japan, and the problems that led to it exist wherever nuclear reactors operate.19 After the fact, TEPCO and government officials blamed this “unprecedented” accident on “natural disasters” that are seldom seen in history, thereby implying that there was no way they could have been anticipated. As the headline of an “Important Report from TEPCO” falsely proclaimed in April 2012, “The scale of the tsunami far exceeded all previously held expectations and knowledge.”20 By invoking forces beyond their foresight and control, TEPCO and the government tried to absolve themselves of responsibility. To some extent they have succeeded. But the Sanriku coast in the Tohoku region of Japan is like California in that “big earthquakes hit it often, hit it regularly, and hit it with massive tsunami.”21 A recent review of worldwide nuclear accident data found that “Japan has had more nuclear accidents of greater severity than other countries.”22 But it is simplistic to endorse either of the two extreme views: that the Fukushima meltdown was fully preventable, or that it 18 Costas Synolakis and Kanoglu Utku, “The Fukushima Accident was Preventable,” Philosophical Transactions of the Royal Society A, Vol. 373, Issue 2053 (2015), pp. 1–23. 19 David Lochbaum, Edwin Lyman, Susan O. Stranahan, and the Union of Concerned Scientists, Fukushima: The Story of Nuclear Disaster (The New Press, 2014), p. vii. 20 TEPCO, “Important Report from TEPCO” (April 24, 2012), at http://www.tepco.co.jp/en/ nu/fukushima-np/info/12042401-e.html. 21 J. Mark Ramseyer, “Why Power Companies Build Nuclear Reactors on Fault Lines: The Case of Japan,” Theoretical Inquiries in Law, Vol. 133, Issue 2 (2012), pp. 457–486. 22 Noriko Behling, Mark C. Williams, and Shunsuke Managi, “Regulating Japan’s Nuclear Power Industry to Achieve Zero-Accidents,” Energy Policy, Vol. 127 (April 2019), p. 308.

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was impossible to foresee. As the Union of Concerned Scientists has concluded, “The truth lies in between”23 and the causes were multiple. Among the key proximate causes are the following: *Too little attention was paid to evidence of large tsunamis that had assaulted the northeastern coast of Japan in previous decades and centuries. The heedlessness was widespread, by TEPCO executives, by the mass media, and by regulatory officials and other agents of the Japanese state. *There were (inexplicably) different design conditions in nuclear power plants located near each other in northeastern Japan. Some turned out to be much safer than others. *There were major methodological mistakes in the hazard analysis that TEPCO conducted to calculate the maximum possible tsunami at the Fukushima No.1 Nuclear Power Plant. There was also a prediction in March 2008 by a TEPCO subsidiary that a tsunami as high as 15.7 meters (47 feet) could hit Fukushima. *There were more than 200 occasions in which TEPCO made false reports during government inspections of its nuclear plants, and the company concealed many other safety incidents as well. *There were large and systematic weaknesses in the government regulation of Japan’s nuclear energy industry.

Legally, one critical question was whether some of the conduct that caused the Fukushima meltdown should be criminally prosecuted. This question was answered through a complicated process. In June 2012, fifteen months after 3/11, 1324 residents of Fukushima filed a criminal complaint with the Fukushima District Prosecutors Office against 33 TEPCO executives and government officials.24 Their complaint was subsequently signed by an additional 13,392 people. Fifteen months later, prosecutors in Tokyo announced that they would not charge anyone because there was little likelihood of obtaining convictions. Over 23

David Lochbaum, Edwin Lyman, Susan O. Stranahan, and the Union of Concerned Scientists, Fukushima: The Story of Nuclear Disaster (The New Press, 2014), p. 245. 24 Tomomi Yamaguchi and Ruiko Muto, “Muto Ruiko and the Movement of Fukushima Residents to Pursue Criminal Charges Against TEPCO Executives and Government Officials,” The Asia-Pacific Journal/Japan Focus, Vol. 10, Issue 27, No. 2 (July 2012), pp. 1–22.

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the next few years, two Prosecution Review Commissions would review and reverse this non-charge decision and institute mandatory prosecution against the three former TEPCO executives who would eventually be acquitted. A related issue was the jurisdiction of prosecution. This was a legal question, of course, but it was also political, for it concerned the quintessentially political questions of “who gets what, when, and how.”25 So, how did such a big and important case involving victims in Fukushima—a prefecture that did not use a single kilowatt of power generated by TEPCO’s nuclear power plants—get handled by prosecutors in Tokyo and by two PRCs in Tokyo, each of which was composed of 11 residents of the nation’s capital? Tokyo is 150 miles south of the scene where the nuclear meltdowns occurred, and one PRC principle is that its review should be made by citizens near the place where the case occurred. Moreover, Article 2 of Japan’s Code of Criminal Procedure says, “The territorial jurisdiction of courts is determined by the place where the crime was committed, the place where the domicile or the residence of the accused is located, or the place where the accused is at present.” In the TEPCO case, the second and third provisions of this law (the residence of the accused, and the place where the accused is present) were deemed sufficient to trump the first provision (the place where the crime occurred). But an answer to the question of jurisdiction also requires a broader understanding of the way in which Japanese prosecution is organized. In Japan, the procuracy is a bureaucracy which routinely employs a system of “hierarchical consultation and approval” (kessai) that is especially thorough in high-profile cases. In the TEPCO case there were many kessai discussions between prosecutors at various levels of the organization. Ultimate decision-making authority lay with executive prosecutors in the Supreme Prosecutors Office in Tokyo, who apparently believed that by moving the jurisdiction to Tokyo they could exercise greater control over the case and also avoid the possibility of involvement by Fukushima citizens in a PRC review. Prosecutors may also have realized that if charges were filed, it would be better for the trial to take 25

Harold D. Lasswell, Politics: Who Gets What, When, How (1936).

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place in Tokyo, where court decisions in criminal cases have long been more pro-prosecutor than in other parts of the country.26 Prosecutors announced the change of venue on September 9, 2013, just one hour before non-charge decisions were issued by the Tokyo District Prosecutors Office, and they provided several justifications for their decision to transfer jurisdiction to Tokyo. Procedurally, prosecutors said they spoke with attorneys from Fukushima before the transfer decision was made, thereby giving it procedural legitimacy. Practically, since the TEPCO executives lived in Tokyo, any trials that occurred would be more convenient there (there are also many more prosecutors in Tokyo than in Fukushima). Historically, a similar transfer of jurisdiction had occurred in 2003, when cases involving allegations of criminal misconduct by TEPCO officials in Fukushima and Niigata had been transferred to the Tokyo District Court. And substantively, prosecutors stressed that shifting the jurisdiction to the capital (where executive oversight is more likely) would help preserve “the stability and unity of case dispositions” across the country.27 But these justifications are less persuasive than a more parsimonious and political explanation. Simply put, executive prosecutors did not want the TEPCO case to be charged, and keeping it in Tokyo was believed to raise the odds of achieving that outcome. Some analysts have said that prosecutors did not want to indict because a former Prosecutor General (kenji socho)—Japan’s top prosecutor—had “descended from heaven” (amakudari) to become an auditor (kansayaku) for TEPCO. On this view, the influence of an Old-Boy network may have played an important role.28 It is not clear if this is in fact what occurred, but OB influence often occurs in Japan, and there are reasons to wonder here too. It is also striking that in this case prosecutors and police did not even employ the basic methods of “compulsory investigation” (kyosei sosa), 26

David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford, 2002), pp. 67–71. 27 David T. Johnson and Mari Hirayama, “Japan’s Reformed Prosecution Review Commission: Changes, Challenges, and Lessons,” Asian Journal of Criminology, Vol. 14, Issue 2 (June 2019), pp. 77–102. 28 Kawai Mikio, “Kiso Soto o Daseru koto ga Keiji Shiho Kaikaku no Pointo,” Asahi Ronza, August 11, 2015.

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such as search warrants, arrests, and interrogations, that are routinely used in serious criminal cases, ostensibly because TEPCO executives were “cooperating” with the investigation.29 A political explanation for the transfer of jurisdiction is also favored by many victims, survivors, and attorneys in Fukushima. One lawyer said the decision to transfer jurisdiction to Tokyo was an “extremely dirty trick,” as was the decision to announce the non-prosecutions right after the announcement (in September 2013) that Tokyo would host the 2020 Olympics, because the Olympic news would dominate public discussions.30 Criticism was common in the national media too, with observers calling the transfer of jurisdiction and the prosecutors’ non-charge decisions “strange” (Asahi Shimbun), “cold to victims” (Mainichi Shimbun), and “monkey wisdom” (Shukan Kinyobi).31 In this context, mandatory prosecution after PRC review seemed to reflect “the public will,” which is the main purpose of the PRC Law. But getting to this point was difficult. In October 2013 a citizens group from Fukushima asked a Prosecution Review Commission in Tokyo to review prosecutors’ non-charge decision against 6 former TEPCO executives. In July 2014 the PRC concluded that “prosecution is appropriate” for 3 of the former executives and kicked back the case to the prosecutor. But in January 2015 prosecutors in Tokyo decided once again not to charge. In July of that year a PRC in Tokyo concluded for the second 29

Erik Herber, “The 2011 Fukushima Nuclear Disaster: Japanese Citizens’ Role in the Pursuit of Criminal Responsibility,” Journal of Japanese Law, Vol. 21 (2016), pp. 87–109. As discussed in Chapter 4, Japanese prosecutors often do not use methods of “compulsory investigation” (kyosei sosa) in white-collar crime cases, a practice that provokes doubt and distrust among the public. In 2021, they used this passive approach to investigate 10 senior officials of the Kansai Electric Power Company—and they decided not to charge all 10. Subsequently, a Prosecution Review Commission in Osaka ruled that 3 of the executives should be charged with aggravated breach of trust for using financial gimmicks to compensate for pay cuts that had been imposed after the company’s poor earnings performance, and prosecutors were required to reinvestigate. Asahi Shimbun/Asia & Japan Watch, “Editorial: Fresh Start Only Way to Get to Root of Kansai Electric Scandal,” August 4, 2022. 30 David T. Johnson and Mari Hirayama, “Japan’s Reformed Prosecution Review Commission: Changes, Challenges, and Lessons,” Asian Journal of Criminology, Vol. 14, Issue 2 (June 2019), pp. 77–102. 31 Quoted in David T. Johnson, Hiroshi Fukurai, and Mari Hirayama, “Reflections on the TEPCO Trial: Prosecution and Acquittal After Japan’s Nuclear Meltdown,” The Asia-Pacific Journal/Japan Focus, Vol. 18, Issue 2, No. 1 (January 15, 2020), pp. 1–35.

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time that “prosecution is appropriate,” which initiated the process of “mandatory prosecution.” In the second PRC decision, a panel of 11 citizens concluded that the three former executives (Katsumata, Takekuro, and Muto) should be tried for negligently causing (a) the deaths of 44 patients in Futaba Hospital, who perished during their evacuation from an area near one of the Fukushima plants, and (b) the injuries of 13 Self Defense soldiers, who were hit by rubble thrown by explosions at a Fukushima plant. Together, these 57 casualties can be called “the designated victims” in the TEPCO criminal trial. The second PRC resolution (giketsusho) explained why prosecution was appropriate. Its core findings were as follows: The three suspects all had advanced knowledge of nuclear power plant safety measures, and it was clear that if a tsunami exceeding 10 meters hit the Fukushima Daiichi Nuclear Power Plant, a serious accident could occur due to the loss of power… The suspects had a duty to be prepared , even in the event of an extremely large tsunami… It was concretely foreseeable that a serious and severe accident could emit a large amount of radioactive materials into the environment…If appropriate countermeasures had been taken, it should have been possible to avoid the occurrence of a serious and severe accident, even in the event of an earthquake and tsunami of the magnitude that actually occurred. (emphases added)

In August and September of 2015, the Tokyo District Court appointed five private attorneys who had been recommended by the Japan Federation of Bar Associations to be the “designated attorneys” (shitei bengoshi) in this case. They would continue to investigate and would perform the prosecutor’s role at trial. In February 2016 the designated attorneys formally charged the former TEPCO executives with “professional negligence resulting in death or injury.” In Japanese law, the maximum punishment for this crime is five years imprisonment and/or a fine of not more than 1 million yen ($10,000). As explained in Chapter 4, this was the ninth case of mandatory prosecution since the legal reform in 2009 enabled PRCs to override the non-charge decisions of professional prosecutors. It was also the first mandatory prosecution to occur since 2013, when the judo instructor in Nagano was charged and convicted. Many Japanese believed these TEPCO prosecutions were appropriate,

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and some believed even more prosecutions of TEPCO employees and government officials would have better served the interests of justice and deterrence. But almost no one believed that convicting the three former executives would be easy.

Trial During the pretrial process that occurred after mandatory prosecution was instituted, the issues to be contested in the TEPCO trial were defined and decisions were made about what evidence the prosecution and defense would be permitted to present. This process started in March 2017, a year and a half after the forcible indictment and six years after 3/11. The chief judge (Nagabuchi Kenichi), the designated attorneys, and the defense attorneys met five times over the course of three months. This was much shorter than the pretrial processes that occurred after the Akashi and JR West mandatory prosecutions, when it took about two years. Most observers believe the concentrated pretrial process in the TEPCO case disadvantaged the designated attorneys, who had to prepare to prosecute a very complicated case. It is unclear why it was so condensed. Whatever the causes, the main trial issue came to be defined as the foreseeability of a huge tsunami hitting the Fukushima coast. The trial itself took place in 38 sessions over a 27-month period, from June 30, 2017 to September 19, 2019.32 This, too, was shorter than many people anticipated. The trial sessions were held once every three weeks, on average, which was closer together than is often the case when criminal trials occur before a panel of three professional judges. Japan’s judiciary did not want this trial to last as long as many contested trials have in the past. In the highly publicized Kabutoyama case, after two children disappeared from a school for mentally retarded children in Nishinomiya City (near Kobe) in 1974, a former teacher named Yamada Etsuko was acquitted of homicide more than 20 years after she had been

32

Summaries of each TEPCO trial session and of the Tokyo District Court’s decision are available at this NHK website: https://www3.nhk.or.jp/news/special/toudensaiban/.

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charged following a PRC disposition which had concluded that prosecutors’ original non-charge decision was “inappropriate” (fukiso futo). Similarly, following the Tokyo subway gas attack of March 1995, it took 9 years to convict Aum Shinrikyo guru Asahara Shoko and another twoand-a-half years to finalize his sentence of death.33 And former Prime Minister Tanaka Kakuei was convicted of taking bribes in 1981 but was never incarcerated; he died while the guilty verdict was on appeal, some 17 years after his arrest. Compared to these glacially paced cases, the TEPCO trial was speedy. The trial attracted much attention in the media and many more observers than the Tokyo District Court courtroom could accommodate. On the first day of trial 717 people arrived early in the morning to draw lots for 54 courtroom seats—a ratio of 13 to 1. The trial was a big event in the mass media too, with round-the-clock coverage in national and local newspapers, in social media, and on television.34 Before the TEPCO trial started, few analysts seemed confident about what the verdicts would be. I was unsure too. In presenting the prosecution’s case, the designated attorneys stressed that, based on knowledge that was available before 3/11, a major earthquake and tsunami were concretely foreseeable events, and that the TEPCO executives could have and should have prevented the nuclear meltdown by fulfilling their “duty of care” (chui gimu). According to the criminal law of professional negligence as defined in Article 211 of Japan’s Penal Code, and under the orthodox interpretation of this statute by Japan’s judiciary, when a professional engages repeatedly in acts that are potentially dangerous to others, the person who has chosen to commit those acts has a special “duty

33

In 1996, the year after Asahara was arrested, more than one-quarter of all the criminal cases tried in Japan’s 50 District Courts took more than a year to complete, and about 10% of cases reaching the Supreme Court took more than a decade. See Mari Yamaguchi, “20-Year Trial Highlights Criticism of Japan’s Courts,” Los Angeles Times, June 14, 1998. 34 In the opening session of the murder trial of Aum guru Asahara Shoko, 12,292 people vied for 48 seats—a ratio of 256 to 1. But the Japanese record for trial-watching demand may have been set on the first day of the methamphetamine trial of talent-singer Sakai Noriko (October 2, 2009), when 6615 wannabe-watchers drew lots for 20 seats—a ratio of 330 to 1. Sakai became famous in 1987 when (at age 15) she released the hit single “Otoko no Ko ni Naritai” (“I Wanna Be a Boy”).

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of care.”35 Media reports stressed that the prosecution’s case relied on a 2002 report from the Headquarters for Earthquake Research Promotion (HERP), which stated that there was a 20% chance of a magnitude 8 earthquake occurring near Fukushima within the next 20 years. In actuality, the prosecution presented much evidence in addition to the HERP report, including emails and memos that showed TEPCO executives were informed of earthquake risks and advised of potential countermeasures long before 3/11, as well as testimony from witnesses who stated that TEPCO executives seemed reluctant to take meaningful countermeasures against the possibility of a catastrophe. Another core claim by the prosecution was that TEPCO executives had allowed cost considerations and profit imperatives to prevail over considerations of public safety. That corporate executives often do this is not a valid legal defense. In response to the charges of criminal negligence, the defense maintained what TEPCO spokespersons had long insisted: that the company adheres to a “basic policy of always keeping safety first.”36 The defense also stressed that HERP’s report in 2002 was unreliable, and that some experts disagreed with its conclusions, including the Japan Society of Civil Engineers, whose own report (also in 2002) had been emphasized by professional prosecutors when they explained their original non-charge decisions. More fundamentally, the defense insisted that a disaster of Fukushima’s magnitude was not “concretely foreseeable,” and they argued that the 5.7-meter (19 foot) sea wall in Fukushima was designed to withstand a tsunami equivalent to the maximum tide level ever recorded on those shores. For their part, the three defendants echoed at trial what TEPCO spokespersons had been saying since the 3/11 meltdown: the safeguards they took were sufficient, but they “deeply regretted” the accident and the “trouble” (meiwaku) it had caused to victims, survivors, and society. Many observers believed their words were hollow and insincere, but apologies of this kind—“I am not causally or legally responsible, but I am sorry”—are common in Japan. Indeed, the tendency to “grovel through 35

Erik Herber, “The 2011 Fukushima Nuclear Disaster: Japanese Citizens’ Role in the Pursuit of Criminal Responsibility,” Journal of Japanese Law, Vol. 21 (2016), pp. 87–109. 36 TEPCO, “Important Report from TEPCO” (April 24, 2012), at http://www.tepco.co.jp/en/ nu/fukushima-np/info/12042401-e.html.

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a ritual of remorse” is so common that “it’s a running joke” in some segments of Japanese society.37 Ultimately, the Tokyo District Court made three main points in its decision to acquit the former TEPCO executives.38 First, the Court acknowledged that the “long-term evaluation of seismic activities,” which was published by HERP in 2002, had predicted that a tsunami of up to 15.7 meters (52 feet) could occur, but the Court said this assessment lacked a “concrete foundation,” and it concluded that there were doubts about its “reliability.” Let us call this the Shaky Prediction claim. Second, based on knowledge available at the time of the disaster, the Court held that the defendants did not have an obligation to shut down the nuclear plant until safety countermeasures against a giant tsunami could be completed. This claim can be called No Duty to Shut It Down. Third and most broadly, the Court concluded that the legal standards that applied at the time of the incident did not create an obligation for company executives to ensure the “absolute safety” of nuclear power plants. In an often-quoted sentence, the Court said “It would be impossible to operate a nuclear plant if operators are obliged to predict every possibility about a tsunami and take necessary measures.”39 This claim is that Absolute Safety Is Not Required . On these three grounds, the Tokyo District Court concluded that none of the defendants was criminally responsible for the deaths of the 44 patients who were evacuated from Futaba Hospital or for the injuries of the 13 soldiers that were caused by explosions at the Fukushima plant. In my view, all of these core claims are questionable, and so, therefore, are the Court’s acquittals.

37

Mark D. West, Secrets, Sex, and Spectacle: The Rules of Scandal in Japan and the United States (University of Chicago Press, 2006), p. 285. 38 This account relies on the insightful analysis of the Tokyo District Court’s decision by Kyodo News reporter Takeda Masahiro. See “Toden moto Kaichora Muzai, Saibankan Tokuyu no Baiasu ka: Saibanin Saiban nara Chigau Hanketsu mo,” Zenkoku Shimbun Netto, October 4, 2019. 39 Ben Dooley, Eimi Yamamitsu, and Makiko Inoue, “Fukushima Nuclear Disaster Trial Ends with Acquittals of 3 Executives,” New York Times, September 19, 2019; and Kelly Olsen, “Fukushima: Japan Court Acquits Three on Criminal Charges: Decision Means No-One Has Been Held Criminally-Responsible for the World’s Worst Nuclear Disaster Since Chernobyl,” Aljazeera, September 19, 2019.

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Shaky Prediction? After the Great Hanshin Earthquake of January 17, 1995 exposed serious problems in Japan’s earthquake disaster prevention measures, a Special Measure Law on Earthquake Disaster Prevention was enacted in July of the same year. Among other things, Japanese lawmakers recognized that there had been repeated failures to communicate the results of earthquake research to the general public and to organizations that could and should try to prevent disasters. The new law also established a Headquarters for Earthquake Research Promotion (HERP), as a special governmental organization attached to the Prime Minister’s Office.40 Among other missions, HERP “evaluates seismic activity in a comprehensive manner” and “publishes evaluation results.”41 Its report in 2002 predicted a 20% chance of an M8.0 earthquake and (in such an event) tsunami heights of 8.4 to 10.2 meters, which would far exceed the 5.7meter seawall that was at Fukushima. But TEPCO ignored this report, claiming there was not a valid “wave source model” for the prediction. Some engineers have concluded that “the Fukushima accident was preventable” if seismic hazards had been examined over long periods of time, and they have emphasized that when there are large seismic events in the historical record, “the best practice remains to assume that the largest inferred event can occur anywhere along the coast of interest.” On this view, TEPCO’s failure to follow “best practice” was “inconceivable” and “incomprehensible.”42 There was much other evidence introduced at trial that major earthquakes and massive tsunamis have occurred near the Sanriku coast, including an 8.1 magnitude earthquake in 1933 that caused a tsunami about the same size as its successor in 2011. Expert predictions of the future are often inaccurate and unreliable.43 In this case, however, the question was not whether a major earthquake would 40

HERP now belongs to the Ministry of Education, Culture, Sports, Science, and Technology. On Japan’s Headquarters for Earthquake Research Promotion, which was established after the Great Hanshin-Awaji Earthquake of 1995 killed more than 6000 people and destroyed 100,000 buildings, see https://www.jishin.go.jp/main/w_shokai-e.htm. 42 Costas Synolakis and Utku Kanoglu, “The Fukushima Accident was Preventable,” Philosophical Transactions of the Royal Society A, Vol. 373, Issue 2053 (2015), pp. 1–23. 43 Philip E. Tetlock, Expert Political Judgment: How Good Is It? How Can We Know? (Princeton University Press, 2005). 41

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occur; it was when. And in science and in common sense, it must be assumed that a big earthquake can cause a giant tsunami. Philosophically, the March 11 earthquake and tsunami might be called “black swan” events, for they were unpredictable, they had huge impacts, and (after the fact) it was easy to concoct explanations that made them appear more certain than they actually were.44 But scientifically and legally, a massive earthquake and a mighty tsunami near Fukushima were foreseeable events, even if the precise date was impossible to predict. TEPCO paid insufficient attention to historical evidence of large tsunamis striking the region.45 It also failed to follow up on its own computer simulation which showed as early as 2008 that there was a serious tsunami risk to the plant.46 Yet TEPCO reported the results of this simulation to the NISA regulatory agency just 4 days before the triple disaster occurred.

No Duty to Shut It Down? The Court’s second conclusion, that uncertainty about earthquakes and tsunamis means there was no need to shut down the nuclear reactors in Fukushima, is a grand non-sequitur.47 To be sure, the nuclear meltdowns could have been prevented by shutting the nuclear reactors down, and in retrospect this step would have been prudent. But shutting down the reactors was not the only way to avert nuclear catastrophe. Other countermeasures could have been taken, and some were taken by other power plants impacted by 3/11.48 Plants that took better precautions did not 44

See Nassim Nicholas Taleb, The Black Swan: The Impact of the Highly Improbable (Random House, 2007); and Terje Aven, “Implications of Black Swans to the Foundations and Practice of Risk Assessment and Management,” Reliability Engineering and System Safety, Vol. 134 (2015), pp. 83–91. 45 James M. Acton and Mark Hibbs, “Why Fukushima Was Preventable,” The Carnegie Papers, Carnegie Endowment for International Peace, March 2012, pp. 1–44. 46 Jeff Kingston, “Mismanaging Risk and the Fukushima Nuclear Crisis,” The Asia-Pacific Journal: Japan Focus, Vol. 10, Issue 12, No. 4 (March 2012). 47 Takeda Masahiro, “Toden moto Kaichora Muzai, Saibankan Tokuyu no Baiasu ka: Saibanin Saiban nara Chigau Hanketsu mo,” Zenkoku Shimbun Netto, October 4, 2019. 48 Soeda Takashi, “Toden ‘Tsunami Sotei’ Hikisageru tame Atsuryoku: Tohoku Denryoku no Meru de Akiraka ni,” Aera, October 7, 2019.

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melt down, including Units 4, 5, and 6 of the Fukushima No.1 Nuclear Power Plant.49 By insisting that the only way to avert a catastrophic meltdown was to shut down the Fukushima plants entirely, the Tokyo District Court “arbitrarily changed the frame” (katte ni dohyo o kaeta) for deciding the question of preventability in a way that made conviction much more difficult.50 The Court also seemed to turn a blind eye to facts that favored conviction. If the emergency power supplies had been moved to higher ground or placed in watertight bunkers, the nuclear disaster could have been prevented. If watertight connections had been made between emergency power supplies and critical safety systems, the nuclear disaster could have been prevented. And if seawater pumps had been better protected or a backup means to dissipate heat had been constructed, the nuclear disaster could have been prevented. In short, even if the TEPCO executives did not have a duty to shut down the Fukushima plant, they repeatedly violated their duty of care by failing to take other reasonable safety precautions. Of course, it is possible that TEPCO executives really believed a severe nuclear accident was impossible. If that was their state of mind, then their belief was the product of considerable “confirmation bias,” which is the well-documented human tendency to overvalue evidence that supports a pre-existing belief and to undervalue evidence that contradicts it. Responsibility for the failure to recognize and resist this bias can be located in various Japanese actors and institutions, but much of it belongs in TEPCO’s “safety-second” organizational culture and in Japan’s lax system of nuclear regulation.51 The following paragraphs suggest that judges may also have been influenced by confirmation bias in their evaluation of evidence about safety and reasonable care.

49

National Academies Press, Lessons Learned from the Fukushima Nuclear Accident for Improving Safety of U.S. Nuclear Plants (2014); and Costas Synolakis and Utku Kanoglu, “The Fukushima Accident was Preventable,” Philosophical Transactions of the Royal Society A, Vol. 373, Issue 2053 (2015), pp. 1–23. 50 Takeda Masahiro, “Toden moto Kaichora Muzai, Saibankan Tokuyu no Baiasu ka: Saibanin Saiban nara Chigau Hanketsu mo,” Zenkoku Shimbun Netto, October 4, 2019. 51 National Diet of Japan, “The Official Report of the Fukushima Nuclear Accident Independent Investigation Committee” (Chairman Kiyoshi Kurokawa), 2012, pp. 1–86.

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Absolute Safety Not Required? The Tokyo District Court’s third conclusion, that “absolute safety” is not required when operating a nuclear power reactor, also teeters on dubious reasoning.52 For starters, TEPCO’s nuclear power plants have had numerous accidents and incidents over the years. In this context, “absolute safety” was a pipe dream. Jurisprudentially, what the law expects is not absolute safety; it is reasonable care, which is the caution and concern an ordinary, prudent, and rational person would exercise in similar circumstances. TEPCO executives had long fostered belief in what has come to be called the “myth of safety” (anzen shinwa), which is the view that nuclear accidents would not and could not occur. Before 3/11 this belief “tended to stifle honest and open discussion of the risks” of nuclear power.53 After 3/11 this belief was revealed to be a fairy tale, though it is not always acknowledged as such.54 In order to find that “absolute safety is not required,” the Court had to turn a deaf ear to TEPCO’s decades-long PR campaign, the aim of which was to convince the public that nuclear energy is completely safe. The Court also had to turn a jurisprudential somersault, by applying a duty of care in a case involving nuclear power that is lower than the duty of care courts routinely apply for ordinary automobile accidents.55 In sum, the Tokyo District Court’s verdict makes two major mistakes. First, by requiring the prosecution to show that shutting down the plant was the one and only way to prevent a meltdown, it raised the evidentiary bar to an unreasonably high level. Second, by lowering the “duty of care” for TEPCO executives, it “defined professional negligence down” in a way that contradicts previous judicial interpretations

52

Soeda Takashi, “Toden ‘Tsunami Sotei’ Hikisageru tame Atsuryoku: Tohoku Denryoku no Meru de Akiraka ni,” Aera, October 7, 2019. 53 Joannis Noggerath, Robert J. Geller, and Viacheslav K. Gusiakov, “Fukushima: The Myth of Safety, the Reality of Geoscience,” Bulletin of the Atomic Scientists, Vol. 67, Issue 5 (2011), pp. 37–46. 54 Celine-Marie Pascale, “Vernacular Epistemologies of Risk: The Crisis in Fukushima,” Current Sociology, Vol. 65, No. 1 (2017), pp. 3–20. 55 Takeda Masahiro, “Toden moto Kaichora Muzai, Saibankan Tokuyu no Baiasu ka: Saibanin Saiban nara Chigau Hanketsu mo,” Zenkoku Shimbun Netto, October 4, 2019.

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and that closely resembles the claims prosecutors made in their original non-charge decisions. In addition, the Court disregarded evidence that TEPCO had repeatedly concealed nuclear plant safety incidents. In August 2002 TEPCO admitted that it had submitted false technical data at least 200 times between 1977 and 2002, and in 2007 it announced that an internal investigation had revealed still more unreported safety problems. In the context of this much dishonesty, one wonders why the Court found TEPCO’s other claims credible. No one can read the minds or the motives of the judges in this case, but their deeply flawed reasoning is compatible with the view that “peculiar convictions and biases” helped lead them to their conclusion.56 Of course, there is a long history of Japanese judges deferring to the interests of professional prosecutors in criminal cases.57 Research also shows that Japanese judges who decide cases in ways favored by the ruling Liberal Democratic Party often enjoy better careers than judges who deviate from the conservative party line.58 In this light, we should not be surprised that the judicial views expressed in the TEPCO trial resemble those possessed by prosecutors and LDP politicians.

What If? What if the TEPCO trial had occurred before a lay judge panel of six citizens and three professional judges? This did not happen because under Japan’s Lay Judge Law, which took effect in 2009, the only crimes eligible for lay judge trial are those for which the maximum possible punishment is a life sentence or a death sentence. Only about 2% of criminal cases fall into these categories. But still: what if ?

56 Takeda Masahiro, “Toden moto Kaichora Muzai, Saibankan Tokuyu no Baiasu ka: Saibanin Saiban nara Chigau Hanketsu mo,” Zenkoku Shimbun Netto, October 4, 2019. 57 Daniel H. Foote, “Policymaking by the Japanese Judiciary in the Criminal Justice Field,” Hoshakaigaku [Journal of the Japanese Association for Sociology of Law], Vol. 72 (2010), pp. 6–47. 58 J. Mark Ramseyer and Eric B. Rasmusen, Measuring Judicial Independence: The Political Economy of Judging in Japan (University of Chicago Press, 2003).

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One prominent journalist believes that if there had been a lay judge trial, the citizens sitting in judgment would have been free of the “peculiar convictions and biases” that caused judges to tilt toward acquittal— and toward the conservative preferences of prosecutors and the LDP. On this view, lay judges’ fidelity to the basic principles of criminal procedure (and what G.K. Chesterton famously called “the fresh eyes of the amateur”59 ) would likely have led to the conviction of the three defendants.60 This counterfactual conclusion is plausible but not entirely persuasive. For one thing, the conviction rate in lay judge cases is not much different than it was in similar cases before the lay judge reform took effect. For another, professional judges in Japan tend to dominate the deliberations by lay judge panels, much as professional judges do in criminal cases adjudicated by mixed tribunals in various European countries.61 Moreover, to convict a criminal defendant in a lay judge trial, at least one professional judge must join the majority view. Under this rule, lay judges cannot out-vote judges, for they need at least one professional ally. In the TEPCO trial, persuading one judge to join the (hypothetical) lay judge side and convict the three defendants may have been a tall order. On the other hand, this was a case in which citizens on two different PRCs overrode the non-charge decisions of professional prosecutors by supermajority votes of at least 8 to 3. It is therefore reasonable to wonder whether citizen participation in the TEPCO trial could have reached a different verdict. The answer is not obvious—but it might have.

Reactions to the Acquittals There were various reactions to the not-guilty verdicts in the TEPCO trial. The three elderly men who were acquitted were no doubt relieved. 59

G.K. Chesterton, “The Twelve Men,” in Tremendous Trifles (1909). Takeda Masahiro, “Toden moto Kaichora Muzai, Saibankan Tokuyu no Baiasu ka: Saibanin Saiban nara Chigau Hanketsu mo,” Zenkoku Shimbun Netto, October 4, 2019. 61 David T. Johnson and Dimitri Vanoverbeke, “The Limits of Change in Japanese Criminal Justice,” Journal of Japanese Law/Zeitschrift fur Japanisches Recht [ZJapanR ], Vol. 25, No. 49 (2020), pp. 109–165. 60

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Afterward, all offered formulaic apologies that referred to the “great inconvenience” caused by the Fukushima “accident.” Former President and Chairman of TEPCO Katsumata Tsunehisa said, “I would like to express my sincere apologies to the people in society who experienced great inconvenience because of the accident at the Fukushima Daiichi Nuclear Power Plant.” Former Vice President Takekuro Ichiro said, “We would like to express our deepest sympathies and condolences to those who died or were injured in the accident. We are very sorry for the great inconvenience caused to all of you.” And former Vice President Muto Sakae said, “The accident at the Fukushima Daiichi Nuclear Power Plant has caused great inconvenience to a large number of people. As an officer of TEPCO at that time, I deeply apologize again.”62 In making these statements, the defendants were following a script designed to make culturally appropriate displays of remorse while at the same time avoiding responsibility for the catastrophe. Two years later, in a civil court hearing of a shareholder derivative lawsuit, three Tokyo District Court judges expressed skepticism and anger at the former executives for the inconsistencies and “unnaturalness” of their testimony.63 That lawsuit and other ongoing litigation continue to call into question the veracity of some of TEPCO’s claims and of the honesty of the claimsmakers. The acquitted will not be returning to “life as normal” until the various legal processes have run their course. In the eyes of people who believe these mandatory prosecutions were overzealous and inappropriate, the damage done to the defendants’ reputations can never be repaired. To the professional prosecutors who decided not to indict, the Tokyo District Court’s acquittals are seen as confirmation that these cases should never have been charged in the first place. Their “we told you so” reaction is predictable, as are their feelings of vindication. But as explained below, 62

Asahi Shimbun, “‘Aratamete Owabi’ Toden kyu-Keieirin 3Hikoku, Komento o Kohyo,” September 19, 2019. 63 Soeda Takashi, “Toden Kabunushi Daihyo Sosho de Saibankan ga Sogakari, Muto moto Fukushacho no Shogen no Fushizensa o Abaku,” Level 7 News, July 10, 2021. Soeda is also the author of several books on the legal fallout of 3/11, including these: Genpatsu to Otsunami Keikoku o Homutta Hitobito (Iwanami Shinsho, 2014); Toden Genpatsu Saiban: Fukushima Genpatsu Jiko no Sekinin o Tou (Iwanami Shoten, 2017); and Toden Genpatsu Jiko 10nen de Akiraka ni Natta koto (Heibonsha, 2021).

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a courtroom loss does not necessarily mean the defendants should not have been charged. The acquittals were also welcomed by many in Japan’s nuclear industry. On the day the verdicts came down, a spokesman for TEPCO declined to comment about them but did say that the corporation expresses its “sincere apologies for the great inconvenience and concern that the Fukushima nuclear accident has caused to the people of Fukushima prefecture and to society as a whole.” The acquittals were also welcomed by the administration of Prime Minister Abe Shinzo and by the Liberal Democratic Party, which has long supported nuclear power. More broadly, the acquittals were hailed by proponents of nuclear energy around the world, including General Electric, Westinghouse, Areva, and the uranium mining industry. Japan’s criminal courts are often criticized for having an “iron hand” of justice that results in conviction rates of close to 100%,64 but after the TEPCO verdicts it was acquittals that prompted widespread criticism of Japanese courts and of the system of government in which they are embedded. A spokesman for Greenpeace said, A guilty verdict would have been a devastating blow not just to TEPCO but the Abe government and the Japanese nuclear industry. It is therefore perhaps not a surprise that the court has failed to rule based on the evidence. More than eight years after the start of this catastrophe, TEPCO and the government are still avoiding being held to full account for their decades of ignoring the science of nuclear risks65

Similarly, Ishida Shozaburo, one of the designated attorneys who played the role of prosecutor at this trial, claimed the fix was in. “This is a ruling that took the government’s nuclear power policy into consideration,” he lamented (The Mainichi, September 20, 2019). A more general version of this view holds that Japanese courts are often instruments of state power, 64 The (sometimes misplaced) criticisms of Japan’s high conviction rates are summarized and analyzed in David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford University Press, 2002), pp. 214–242. 65 See Greenpeace, “Japanese Legal System Fails the Victims of Fukushima Daiichi Nuclear Disaster: Ex-Tepco Executives Found Not Guilty,” September 19, 2019, at https://www.greenp eace.org/japan/uncategorized/press-release/2019/09/19/10278/.

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and that Japanese judges routinely stand on the side of the government by affirming its preferences—as they did in the TEPCO trial.66 Lawyer Kaido Yuichi, who has represented victims from Fukushima in various legal proceedings, echoed these views when he said “I never imagined such a terrible ruling would be handed down… If criminal punishments can’t be pursued for causing an accident, a similar accident could occur again” (The Mainichi, September 20, 2019). The designated attorneys also explained why they would appeal: In this case, the responsibility of a person belonging to the highest management of a nuclear power company, is to make the safety of a facility called a nuclear power plant the first priority… The court’s ruling not only avoided the important issues of the defendants’ duty of care and their duty to avoid harmful consequences, but it also denied that the tsunami was foreseeable. We cannot agree with a judgment that denies the reliability and concreteness of the “long-term evaluation” that we introduced into evidence and that concluded ‘absolute safety’ is not required in the nuclear business. This ruling completely ignored the concrete results of calculations that indicated a huge tsunami could occur… It would be extremely contrary to justice to finalize this judgment as it is. Even considering the burden on the defendants due to our appeal, we have come to the conclusion that the Tokyo High Court should make another judgment, and so we have appealed today.67

As for public backlash against the verdicts, members of a support group for victims and complainants who were waiting outside the Tokyo District Court “roared in anger” when they were informed of the acquittals (Asahi Shimbun Asia & Japan Watch, September 20, 2019). Yoshidome Akihiro, an 81-year-old anti-nuclear campaigner from Tokyo, 66

See, for example, Segi Hiroshi, Zetsubo no Saibansho (Kodansha Gendai Shinsho, 2014); and J. Mark Ramseyer and Eric B. Rasmusen, Measuring Judicial Independence: The Political Economy of Judging in Japan (University of Chicago Press, 2003). For the claim that mandatory prosecution by PRCs “poses a challenge to the political resistance of judges” in Japan, see Matsumiya Tadaaki, “‘Kenshin Bakku’ Sono Eikyoryoku o Kosatsu,” Akahata, July 24, 2022. And for an insightful analysis of competing views of Japan’s judiciary, see Frank Upham, “Political Lackeys or Faithful Public Servants? Two Views of the Japanese Judiciary,” Law & Social Inquiry, Vol. 30, No. 2 (Spring 2005), pp. 421–455. 67 See “Koso ga Kimarimashita!,” September 30, 2019, at https://shien-dan.org/20190930-app eal/.

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said “I had braced myself that we might not get a clean victory, but this is too awful. This shows Japanese courts don’t stand for people’s interest” (Japan Today, September 20, 2019). Months earlier, Igarashi Kazunori, a 62-year-old resident of Fukushima who had watched while the defendants were questioned said, “It is ridiculous for top executives in a giant company like TEPCO to claim that they do not know whose responsibility it was to decide on tsunami countermeasures” (Asahi Shimbun, October 31, 2018). And an editorial in Japan’s newspaper of record called the Tokyo District Court’s ruling “baffling” because it took “a surprisingly different stance toward the predictability of the tsunami from other [Japanese] court decisions concerning the matter” (Asahi Shimbun Asia & Japan Watch, September 20, 2019). Sometimes a not-guilty verdict is a miscarriage of justice. In the United States, the acquittal of former football star O.J. Simpson for a doublemurder is often seen this way, and in Japan, so is the acquittal (on appeal) of businessman Miura Kazuyoshi, who was charged with murdering his wife in Los Angeles in 1981. In the TEPCO trial, the central question was whether the prosecution had proven beyond a reasonable doubt that the three defendants acted with criminal negligence by failing to exercise reasonable care in their management of the nuclear power plants at Fukushima. In my view, there was more evidence of guilt in this trial than there is in the thousands of cases of criminal negligence that result in the conviction of automobile drivers who are involved in traffic accidents each year.68

Analysis The TEPCO criminal case is not over yet. Citizens in Fukushima collected more than 14,000 signatures calling for an appeal against the acquittals, and that is what designated attorneys have done. The first session in the Tokyo High Court was held on November 2, 2021, and 68 This comparison was made by Kyodo News reporter Takeda Masahiro, in “Toden moto Kaichora Muzai, Saibankan Tokuyu no Baiasu ka: Saibanin Saiban nara Chigau Hanketsu mo,” Zenkoku Shimbun Netto, October 4, 2019. For similar analysis, see Kawai Mikio, “Kiso Soto o Daseru koto ga Keiji Shiho Kaikaku no Pointo,” Asahi Ronza, August 11, 2015.

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a decision is expected in January 2023. Thereafter, an appeal to the Supreme Court could take several additional years to conclude. Designated attorneys appealed none of the acquittals in the other mandatory prosecution cases, but when professional prosecutors appeal not-guilty verdicts, as they do about 30% of the time, “not guilty” becomes “guilty” in nearly half of them.69 In the high-profile and highly consequential TEPCO case, the likelihood of obtaining convictions on appeal seems substantially lower than these statistics suggest. The generally conservative tendencies of Japan’s judiciary point in the same direction, as does the decision by Japan’s Supreme Court holding that the central government is not civilly liable for the Fukushima nuclear crisis.70 However the prosecution’s appeal turns out, there are at least four lessons to learn from the TEPCO case study, on the power of the criminal process to clarify truth, the pursuit of criminal liability after major accidents, the under-prosecution of white-collar crime, and the limits of the criminal sanction.

Prosecution and Truth The TEPCO trial and the criminal process that preceded it have revealed many facts that are proving useful to plaintiffs in their ongoing lawsuits against TEPCO and the Japanese government.71 Winning these cases is not easy, for nuclear victims in Japan have to overcome high hurdles to obtain judicial remedies, and most Japanese lawyers have not been

69

Japan’s “White Paper on Crime” (Hanzai Hakusho) reports that in the five-year period from 2015 to 2019, there were 541 District Court not-guilty verdicts. Prosecutors appealed 157 of them (29.0%), and 72 of those appeals (45.9%) ended in conviction. Overall, 72 of the 541 acquittals (13.3%) were changed into conviction on appeal. 70 Mari Yamaguchi, “Japan’s Top Court Says Government Not Responsible for Fukushima Disaster,” Associated Press, June 17, 2022. 71 On civil and administrative lawsuits related to Fukushima, see Matsui Shigenori, Law and Disaster: Earthquake, Tsunami, and Nuclear Meltdown in Japan (Routledge, 2018); and Paul Jobin, “‘Some 40 Years to Clean Up Fukushima’: A View from Ongoing Court Battles,” Georgetown Journal of Asian Affairs (Winter 2019), pp. 73–81.

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taught to employ innovative strategies in their legal practice.72 But plaintiffs have prevailed in many of these suits, and more are still being litigated.73 As of mid-2022, around 30 lawsuits had been filed against various governments in Japan, and lower courts had acknowledged the government’s liability in 12 of them while denying government liability in 11. Some of the former would have been less successful if there had been no mandatory prosecution in the TEPCO case. In addition to revealing facts that were previously unknown, concealed, or denied,74 the TEPCO prosecution clarified the truth about Fukushima by exposing many of the company’s claims as humbug and hokum.75 In this sense, mandatory prosecution was an act of “bullshit-detection.” As a Princeton philosopher has written, one of the most salient features of modern societies is that “there is so much bullshit,” and in some respects it is an even “greater enemy of the truth than lies are.”76 Because of information revealed through the PRC’s prosecution of the three former executives, we now know that the TEPCO corporation had many opportunities to increase safety at the aging Fukushima plants. We also know that they had many good reasons to believe improving safety was imperative. But instead of spending money to make the Fukushima facilities safer, and instead of making improvements that would have made Fukushima as safe as the nuclear reactors at Onagawa in Miyagi prefecture (just north of the reactors that melted down), which were assaulted by a tsunami of similar size but had an entirely different fate, TEPCO executives paid celebrities to appear in advertising aimed at persuading the Japanese public that safety was the company’s top priority.

72

Suami Takao, “Legal Support to Fukushima Municipality: Law School, Lawyers, and Nuclear Disaster Victims,” Asian-Pacific Law & Policy Journal , Vol. 16, No. 2 (2015), p. 184. 73 The Mainichi, “Editorial: Top Court’s Fukushima Nuclear Crisis Ruling Does Not Excuse Gov’t,” June 18, 2022. 74 Erik Herber, “The 2011 Fukushima Nuclear Disaster: Japanese Citizens’ Role in the Pursuit of Criminal Responsibility,” Journal of Japanese Law, Vol. 21 (2016), pp. 87–109. 75 Soeda Takashi, “Toden Kabunushi Daihyo Sosho de Saibankan ga Sogakari, Muto moto Fukushacho no Shogen no Fushizensa o Abaku,” Level 7 News, July 10, 2021. 76 Harry G. Frankfurt, On Bullshit (Princeton University Press, 2005), pages 1 and 61. On the flight from fact in modern societies, see also Michiko Kakutani, The Death of Truth (Tim Duggan Books, 2018); and Jonathan Rauch, The Constitution of Knowledge: A Defense of Truth (Brookings Institution Press, 2021).

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But safety was not the company’s top priority.77 The most critical question for executives was not “how safe is safe enough?” but rather “how can we maximize profit?” In this sense, the TEPCO executives’ complacency about safety was ordinary, for this is how corporate executives often act when there is tension between company profit and public safety.78 Indeed, by some standards in the industry, Fukushima was a well-defended nuclear plant. Thus, if one lesson of Fukushima is that “accidents can happen here in Japan,” another is that the country’s status quo for nuclear safety standards is “untenable.”79 Both of these lessons became clear in part because of the power of mandatory prosecution and the criminal process to reveal facts that otherwise would have remained buried.

Comparisons Cross-national comparisons are illuminating because they help reveal what is ordinary, distinctive, problematic, and praiseworthy about one’s own country and context. There have been many atomic accidents in other countries. Two of the biggest were Three Mile Island on the east coast of the United States in 1979, and Chernobyl in Ukraine in 1986. This section shows that they had sharply contrasting criminal justice consequences. It then examines the criminal justice consequences of two non-nuclear accidents: the sinking of the South Korean ferry M.V. Sewol in 2014, and the Deepwater Horizon oil spill in the Gulf of Mexico in 2010. There have been many other major accidents, of course, including the forest fires precipitated by the negligence of Pacific Gas and Electric

77 Soeda Takashi, Toden Genpatsu Saiban: Fukushima Genpatsu Jiko no Sekinin o Tou (Iwanami Shoten, 2017); and Lawrence Repeta, “Could the Meltdown Have Been Avoided?,” in Tsunami: Japan’s Post-Fukushima Future (Foreign Policy eBook, 2011), p. 186. 78 Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power (Free Press, 2004). 79 David Lochbaum, Edwin Lyman, Susan O. Stranahan, and the Union of Concerned Scientists, Fukushima: The Story of Nuclear Disaster (The New Press, 2014), pp. 248–251.

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Company that swept California in 2018,80 DuPont’s chemical contamination of a water supply that affected 70,000 persons in West Virginia,81 and lead poisoning of the water supply in Flint, Michigan, which harmed up to one-quarter of the children in that impoverished city.82 The legal aftermath of these and other accidents reinforces the main conclusion of the comparisons in this section: achieving “criminal justice” after major accidents is difficult, especially when due regard is shown for the rights of the accused.83 On March 28, 1979, the accident that occurred at Three Mile Island (TMI) in Pennsylvania began when a pump providing cooling water to steam generators stopped running. This triggered a series of events that caused a nuclear reactor to shut down. It was the 13th time in a year that problems in the cooling system had caused a shutdown. The TMI accident was less serious than the crisis at Fukushima, but one shared cause was a “common and dangerous belief: that an accident at Three Mile Island, or Fukushima Daiichi, just could not happen.”84 TMI was the most studied accident in U.S. history, at least up until that time. And studies show that the accident resulted from oversight that focused too narrowly on nuclear plant design and hardware and not enough on the human and social aspects of safety. The Kemeny Commission (appointed by President Jimmy Carter) concluded that “an accident like Three Mile Island was inevitable” because of “the failure of organizations to learn the proper lessons from previous incidents.”85 Other studies agreed that social, organizational, and management factors (not

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Ivan Penn, Peter Eavis, and James Glanz, “How PG&E Ignored Fire Risks in Favor of Profits,” New York Times, March 18, 2019. 81 Robert Bilott, Exposure: Poisoned Water, Corporate Greed, and One Lawyer’s Twenty-Year Battle Against DuPont (Atria, 2019). 82 Anna Clark, The Poisoned City: Flint’s Water and the American Urban Tragedy (Metropolitan Books, 2018). 83 John C. Coffee, Corporate Crime and Punishment: The Crisis of Underenforcement (BerrettKoehler Publishers, 2020). 84 David Lochbaum, Edwin Lyman, Susan O. Stranahan, and the Union of Concerned Scientists, Fukushima: The Story of Nuclear Disaster (The New Press, 2014), p. 142. 85 Quoted in Lochbaum et al. (2014), p. 150. The Kemeny Commission’s report (1979, pp. 1– 178) is available at http://large.stanford.edu/courses/2012/ph241/tran1/docs/188.pdf.

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technology) were the main causes of this incident.86 In these respects, TMI and Fukushima are cousins. In the decades that followed the TMI accident, America’s nuclear industry and its supporters repeatedly emphasized that “nobody died” because of it. This shibboleth would become “a huge stumbling block to comprehensive safety reform” in the United States and other countries, including Japan.87 In the end, a federal grand jury did indict the TMI operator (the Metropolitan Edison Company) for falsifying leak rate data and destroying documents related to the accident, but none of the human mistakes and misconduct in this case resulted in a criminal conviction. In the Chernobyl disaster that occurred in the Ukrainian Soviet Socialist Republic in 1986, a nuclear reactor exploded during a test of emergency power availability, killing at least 31 people. (This official Soviet count is contested, and it does not include people who died from the effects of radiation exposure in the years that followed.) The nuclear meltdown precipitated by this explosion forced the evacuation of 135,000 people, and it spread radioactive material across Europe and beyond. Even after Fukushima, Chernobyl is still considered “the world’s greatest nuclear disaster.”88 After 3/11, it took Japan’s criminal justice system more than eight years to reach verdicts in a criminal court. In contrast, after Chernobyl it took three months for the head of the nuclear power station and two of his aids to be convicted of crimes and sentenced to 10 years in a labor camp. In a summation of the court’s decision, the chief judge stressed that the Chernobyl plant had been poorly administered and that “an atmosphere of lack of control and lack of responsibility” was the main cause of the disaster.89 In addition, three other Chernobyl employees were convicted of crimes and sentenced to 5 years, 3 years, and 2 years, 86 Charles Perrow, Normal Accidents: Living with High-Risk Technologies (Princeton University Press, 1984). 87 David Lochbaum, Edwin Lyman, Susan O. Stranahan, and the Union of Concerned Scientists, Fukushima: The Story of Nuclear Disaster (The New Press, 2014), p. 150. 88 Adam Higginbotham, Midnight at Chernobyl: The Untold Story of the World’s Greatest Nuclear Disaster (Simon & Schuster, 2019). 89 New York Times (Reuters), “Chernobyl Officials Are Sentenced to Labor Camp,” July 30, 1987.

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respectively, while the three Chernobyl engineers who were criminally charged had their prosecutions terminated after they died. The criminal trial of the six people who were convicted lasted three weeks, and almost all of it was closed to the public. This was a “rush to judgment” of the kind that is common in authoritarian political systems—and that is not unknown in democratic systems (see the South Korean example, below). By comparison, Japan’s criminal process in the TEPCO case might be called a paragon of due process. As for Chernobyl today, some three dozen years after the accident, the remains of the nuclear plant still lie within an “exclusion zone” of 2600 square kilometers (about 1000 square miles), where wildlife flourishes in a radioactive Eden. The third point of comparison is a non-nuclear accident involving Japan’s nearest neighbor, South Korea. The sinking of the M.V. Sewol ferry in South Korean waters on April 16, 2014 killed 304 people—250 of whom were high-school students on a class trip. During this accident, Lee Jun-seok, the captain of the Sewol, jumped a railing and abandoned the ship. He was one of 172 passengers and crew to survive. He was also one of 15 members of the crew to be convicted of criminal charges. In November 2014, just seven months after the ship sank, the Gwangju District Court found Lee guilty of negligence and sentenced him to 36 years in prison. The chief engineer of the ferry was convicted and received a 30-year sentence, while 13 other defendants were convicted and sentenced to various terms of imprisonment, some up to 20 years. After both the prosecution and defense appealed, Lee’s sentence was increased from 36 years to life imprisonment, while the other 14 defendants had their sentences reduced to prison terms of at most 12 years.90 This was not an unrestrained “rush to judgment” in the Russian style, but it was fast and rough enough to make many observers wonder whether the “quick” was undermining the “careful.” The criminal prosecutions in this case were encouraged by populist and political forces that seem to be more common and influential in Korea than in Japan.91 90 Sean Lavery, “The Sinking of the M.V. Sewol and the Confusion of Disasters,” The New Yorker, April 9, 2019. 91 Neil Chisholm, “How Prosecutorial Independence Is Lost: An Empirical Look Inside South Korea’s Bureaucratically Organized Prosecution,” Sungkyunkwan University, March 2021, pp. 1– 20, at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3766683. See also Sang-Hun Choe,

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The final comparison is to an American case that resulted in federal criminal charges against multiple companies and many individuals in addition to other legal sanctions. The Deepwater Horizon (British Petroleum) accident of April 2010 was the largest marine oil spill on record and one of the biggest environmental disasters in American history. The original explosion killed 11 workers. Eventually, nearly 5 million barrels of oil (enough to fill 312 Olympic swimming pools) were spilled into the Gulf of Mexico. In a November 2012 resolution of the federal charges against it, BP agreed to plead guilty to 11 felony counts related to the deaths of the 11 workers, and the company also agreed to pay a $4 billion fine. The Transocean Corporation, which operated the oil rig, pled guilty to a misdemeanor charge and paid a fine of $1.4 billion. Federal prosecutors in the U.S. Department of Justice also prosecuted many individuals, including Kurt Mix, a BP engineer, who was charged with obstruction of justice for deleting messages showing that BP knew the oil flow rate was three times higher than initially claimed by the company, and that BP knew its “Top Kill” strategy to seal the oil leak was unlikely to succeed. In the closest analogy to the TEPCO prosecutions, two site managers of the oil rig (Donald Vidrine and Robert Kaluza) were charged with manslaughter for acting negligently in their supervision of key safety tests performed on the rig prior to the explosion, and for failing to alert onshore engineers of problems in its drilling operation. BP’s former vice president for exploration in the Gulf of Mexico (David Rainey) was also charged with obstructing Congress by misrepresenting the rate that oil was flowing out of the well. And Anthony Badalamenti, a manager with the contractor Halliburton, was charged with instructing two employees to delete data related to Halliburton’s cementing job on the oil well. There were other prosecutions as well, but none of the charges against any of these individuals resulted in prison time, and no charges were levied against high-level executives. At least

“In Seoul, Crowds Denounce a Divisive Politician. Days Later, Others Defend Him.” New York Times, October 13, 2019.

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two of the individuals who were charged (David Rainey and Robert Kaluza) were acquitted at trial.92 As of 2018, cleanup costs, charges, and penalties had cost the British Petroleum corporation more than $65 billion, including $18.7 billion in fines, which at the time was the largest corporate settlement in U.S. history. By comparison, the Japan Center for Economic Research has estimated that cleanup costs for Fukushima will accrue to at least $500 billion. In sum, this is the criminal justice scorecard for these four accidents. *Three Mile Island: few criminal charges and no criminal convictions. *Chernobyl: many serious charges and convictions, but also grave concerns about the fairness of the criminal process. *Sewol: many serious charges and convictions, but also serious concerns about the fairness of the criminal process. *Deepwater Horizon/BP: many charges and some convictions (mostly through plea bargaining), including some convictions of corporations and some fines, but no individuals were sent to prison, and some individuals were acquitted.

This is not a representative sample of cases, of course; the cases were chosen because they are accidents of comparable scope and significance to Fukushima. But these comparisons do suggest that achieving “criminal justice” after a major accident is difficult, especially when the rights and interests of the criminally accused are taken seriously.

The Under-Prosecution of White-Collar Crime In the United States, no institution other than the media reviews noncharge decisions.93 Hence, cases that are not charged seldom receive serious scrutiny. Moreover, prosecutors in the United States have been 92

See “Deepwater Horizon oil spill,” at https://en.wikipedia.org/wiki/Deepwater_Horizon_oil_ spill. 93 Of course, in America’s federal system prosecutors in different jurisdictions can simultaneously investigate substantially similar conduct. See, for example, Matt Zapotosky, “The Status of Key Investigations Involving Donald Trump,” Washington Post, May 12, 2022.

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timorous about charging white-collar offenses and corporate crimes. One highly acclaimed book on this subject is The Chickenshit Club. The title comes from a speech James Comey gave to prosecutors in 2002 in the federal Office of the U.S. Attorney for the Southern District of Manhattan, where Comey was the top prosecutor. (Comey would become Director of the FBI in 2013, and he was fired by President Trump in 2017.) Comey spent his first months as U.S. Attorney listening to career prosecutors and learning what kinds of cases they were making. Then he gave a speech to his subordinates in which he asked, “Who here has never had an acquittal or a hung jury? ” When many hands went up among the go-getters and resume-builders in this elite prosecutors’ office, Comey sarcastically congratulated them by saying, “You are members of what we like to call the Chickenshit Club.” As the author of that book explains, Prosecuting wrongdoers is an awesome responsibility, to be undertaken carefully and judiciously. But prosecutors – unlike other lawyers – are not simply advocates for one side. They are required to bring justice. They need to be righteous, not careerist. They should seek to right the biggest injustices, not go after the easiest targets. Victory in the courtroom should be a secondary concern, meaning that government lawyers should neither seek to win at all costs nor duck a valid case out of fear of losing… Comey wanted his prosecutors to be bold, to reach and to aspire to great cases, no matter their difficulty.94

Comey’s speech became well-known for making the point that prosecutors should try to make great cases. But he did not always walk-thetalk, and his comment also came to be seen as feckless. Some critics even claim that Comey himself belongs to the “Chickenshit Club” because he failed to pursue many serious white-collar offenders while he was the top federal prosecutor in Manhattan. The under-prosecution of white-collar crime is a serious problem in many countries. In the United States, despite widespread criminal malfeasance that contributed to the catastrophic financial crisis 94

Jesse Eisinger, The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives (Simon & Schuster, 2017), pp. xiv–xv.

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of 2008, no top bankers from the biggest financial firms were prosecuted. And the problem of impunity for white-collar offenders extends far beyond finance, to pharmaceutical companies, technology giants, automobile manufacturers, transnational corporations, and beyond. As many scholars and journalists have documented, American prosecutors often lack the will and the ability to prosecute white-collar crime. The result is injustice on a grand scale and failures of deterrence that allow white-collar crime to fester.95 The problems of under-prosecution and impunity help explain why countries such as Germany, Italy, and Sweden require prosecutors to file criminal charges when an offense is made known. Their approach reflects the “principle of compulsory prosecution,” which can be contrasted with the “principle of discretionary prosecution” that prevails in Japan, the United States, and South Korea, where prosecutors have no legal obligation to charge, regardless of the evidence. But prosecution decisions are complicated. In the former countries, where prosecutors are supposed to have no choice but to charge, the principle of compulsory prosecution is sometimes evaded and ignored. In Germany, for example, where a principle of compulsory prosecution (legalitatsprinzip, literally “legality principle”) has long been established, prosecutors are frequently criticized for inappropriately dismissing charges or for deferring prosecution, especially in cases of corporate crime.96 And in Sweden, the principle of compulsory prosecution does not prevent prosecutors from deciding not to prosecute rape, even when there is substantial evidence of wrongdoing.97 In short, the problem of under-prosecution is a formidable challenge in many countries—and not just for white-collar crime. All too often, the 95

Brandon L. Garrett, Too Big to Jail: How Prosecutors Compromise with Corporations (The Belknap Press of Harvard University Press, 2014); John C. Coffee, Jr., Corporate Crime and Punishment: The Crisis of Underenforcement (Berrett-Koehler, 2020); and Jennifer Taub, Big Dirty Money: The Shocking Injustice and Unseen Cost of White Collar Crime (Viking, 2020). 96 Shawn Boyne, “German Prosecutors and the Rechtsstaat,” in Maximo Langer and David Alan Sklansky, editors, Prosecutors and Democracy: A Cross-National Study (Cambridge University Press, 2017), p. 139. 97 See Jenny Nordberg, “The Case That Killed #MeToo in Sweden,” New York Times, March 15, 2022. This article also describes how Swedish prosecutors charge some women with criminal defamation after they complain about rape.

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reality of criminal law enforcement reflects Jonathan Swift’s observation that “laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”

The Limits of the Criminal Sanction When a 47-year-old resident of Fukushima named Uno Akiko learned of the not-guilty verdicts in the TEPCO trial, she realized what a difficult challenge it is to “pursue corporate responsibility and protect society.”98 This may be the most important lesson of all.99 Corporations are powerful drivers of social change, often in ways that increase public welfare. But corporations are also the source of some of Japan’s most serious crime problems,100 and the verdicts in the TEPCO trial suggest that criminal law enforcement has limited capacity to hold them and their agents accountable. Some analysts believe the TEPCO acquittals prove there was insufficient evidence to prosecute the former executives. But proving guilt “is almost always difficult with corporate crime,”101 and a courtroom loss does not necessarily mean the case should not have been charged. The prosecution of three former executives revealed many important facts and increased public awareness of the risks of nuclear power. It also encouraged Japan’s governments to get more serious about regulating its nuclear energy industry. Other analysts have criticized the TEPCO prosecutions for presuming the possibility of a “zero-risk society.”102 On this view, using the criminal law to promote low tolerance for risk creates perverse incentives for

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Asahi Shimbun, September 29, 2018. On the limits of the criminal sanction more generally, see Herbert L. Packer, The Limits of the Criminal Sanction (Stanford University Press, 1968). 100 Alan S. Miller and Satoshi Kanazawa, Order by Accident: The Origins and Consequences of Conformity in Contemporary Japan (Westview Press, 2000), pp. 81–92. 101 John Braithwaite and Gilbert Geis, “On Theory and Action for Corporate Crime Control,” Crime & Delinquency, April 1982, p. 297. 102 Sankei Shimbun, “TODEN Genpatsu Jiko Kyosei Kiso ni wa Gimon Nokoru,” August 1, 2015. 99

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business and government, by making them overly cautious about risktaking that could lead to economic growth. But when it comes to the production of nuclear energy, the central risk is a disaster that could be cataclysmic (see Fukushima and Chernobyl). How much tolerance should law and society have for catastrophic risk? Some of the most perverse incentives are put in place by the rules of “limited liability” that apply to corporations in Japan and other nations, for in the event of a disaster they cap a corporation’s liability at the firesale value of its net assets. As one scholar observes: Because that maximum [amount of liability] falls far short of the social costs of a nuclear meltdown, Tokyo Electric will not pay the full cost of running these reactors. Instead, it can use the law to externalize the cost of doing business. It and the other power companies built nuclear reactors that could not survive expected earthquakes. But they did not do so foolishly. They did so because the limited liability at the heart of the corporate law made it profitable to do so.103

The rules of limited liability create incentives for corporations to “externalize” the negative consequences of their actions onto people who have not consented to those actions. In this sense, a corporation can be understood as an “externalizing machine” that pursues profit by routinely displacing the negative effects of its actions.104 This legal regime encourages behavior if it is profitable to the company even when it is harmful to outsiders. And this observation leads to a question that seldom gets asked: Are corporations psychopathic? When an American expert on psychopathology (Dr. Robert Hare) was asked how his checklist for diagnosing this condition in individuals applies to the character of corporations, he found a close match in many respects:

103 J. Mark Ramseyer, “Why Power Companies Build Nuclear Reactors on Fault Lines: The Case of Japan,” Theoretical Inquiries in Law, Vol. 133, Issue 2 (2012), pp. 457–486. 104 Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power (Free Press, 2004), pp. 60–84.

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(1) Corporations are irresponsible in that they attempt to satisfy their own goals (especially profitability) while putting much else at risk in the process. (2) Corporations manipulate public opinion. (3) Corporations are grandiose, insisting on their own superiority. (4) Corporations lack empathy for the victims of their behavior. (5) Corporations are asocial and inconsiderate of the interests of others. (6) Corporations often refuse to accept responsibility for their own actions. (7) Corporations are unable to feel remorse. (8) Corporations relate to others superficially, by presenting themselves in a manner that seems appealing but does not reflect their real (psychopathic) character.105 Corporate actors are often “compelled to cause harm when the benefits of doing so outweigh the costs.”106 Their actions are not mainly a matter of bad will or malevolence. Rather, they arise from its legal nature, as a shark’s behavior emerges from its genetic nature.107 The result is an organization that differs in many deep respects from the character of most natural persons. And while this “corporate person” is created and enabled by law, it is difficult for law to control.108 Seeing the corporation clearly—psychopathology and all—is important because “unless we can accept corporate crime as a conceptually separate problem from traditional crime, the powerful will continue to ensure that ‘collectivist might’ prevails in courts of law.”109

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Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power (Free Press, 2004), pp. 56–57. 106 Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power (Free Press, 2004), p. 60. 107 Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power (Free Press, 2004), p. 70. 108 See, for example, Christopher D. Stone, Where the Law Ends: The Social Control of Corporate Behavior (Waveland Press, 1975); and Gregg Barak, Unchecked Corporate Power (Routledge, 2017). 109 John Braithwaite and Gilbert Geis, “On Theory and Action for Corporate Crime Control,” Crime & Delinquency, April 1982, p. 314.

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Japanese lawmakers have done little to criminalize corporate misconduct, and Japanese legal professionals have long been reluctant to punish corporations and their agents for the harms that they cause.110 In these respects, Japanese criminal justice resembles its counterparts in many other countries. In the TEPCO case, citizens serving on two PRCs made decisions that led to the prosecution of three former executives—and ultimately to their acquittal. This was not a victory for justice, but neither was it a total defeat. In the end, the TEPCO case teaches that “business as usual” for corporations can have terrible consequences for people and the planet. The most urgent example is global warming, which is “worse, much worse” than most people think.111 Without major changes in how corporations conduct business (and how billions of people conduct their lives), parts of planet earth will become close to uninhabitable, and other places will become horribly inhospitable. The solutions to this problem are not simple,112 but perhaps slower growth is an idea whose time has come. In some contexts, nuclear energy might even be a partial solution to the problem of climate change.113 Even the author of a terrifying history of the nuclear meltdown at Chernobyl believes that from a statistical point of view, nuclear power is safer than alternative sources of energy such as coal and oil.114 It will take decades (perhaps centuries) to clean up the catastrophic mess at Fukushima. In the meantime, the ruined plants and their surroundings have become a huge storage area for radioactive waste and a grotesque monument to corporate misconduct, government dereliction, and the problem of impunity that Japan’s Prosecution Review Commission tried to confront. 110 Matsuo Koya, “The Development of Criminal Law in Japan since 1961,” in Daniel H. Foote, editor, Law in Japan: A Turning Point (University of Washington Press, 2007), pp. 312– 333. 111 David Wallace-Wells, The Uninhabitable Earth: Life After Warming (Tim Duggan Books, 2019). 112 Vaclav Smil, How the World Really Works: A Scientist’s Guide to Our Past, Present and Future (Penguin, 2022). 113 Gwyneth Cravens, Power to Save the World: The Truth About Nuclear Energy (Vintage, 2008). 114 Adam Higginbotham, Midnight at Chernobyl: The Untold Story of the World’s Greatest Nuclear Disaster (Simon & Schuster, 2019).

6 Lessons

There are many problems with prosecutors, and one of the most neglected is the under-prosecution of serious offenses, including whitecollar crimes and sex crimes. When these crimes go uncharged, as they frequently do in Japan and other societies, offenders are not held accountable, victims suffer, and deterrence and justice fail. Japan’s unique Prosecution Review Commission is designed to address this problem. The preceding chapters explained the origins, operations, and impacts of this institution for reviewing prosecutors’ non-charge decisions. This chapter asks what lessons should be learned from that analysis. It begins by describing an unprosecuted rape case that illustrates both the promise and the problems of the PRC. Then ten key findings from this study are summarized, which show that PRCs have cross-cutting effects on criminal justice in Japan: some conservative, some progressive, and some mixed. I then describe how PRCs help promote democratic prosecution in Japan and discuss the implications of this system of citizen review for the problem of non-prosecution in other countries. The chapter closes with suggestions for reform that might make PRCs and criminal prosecution in Japan more transparent, effective, and democratic. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. T. Johnson, Japan’s Prosecution Review Commission, Palgrave Advances in Criminology and Criminal Justice in Asia, https://doi.org/10.1007/978-3-031-19373-6_6

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All of the ideas in this concluding chapter proceed from a premise that many systems of criminal justice neglect and ignore: the discretion of prosecutors not to charge criminal cases can be—and should be— controlled.

A Failure to Prosecute Rape In some respects Japan is one of the safest societies in the world, with homicide, robbery, and theft rates much lower than the rates in most other developed democracies.1 But what about sex crime? According to data compiled by the United Nations Office on Drugs and Crime, Japan had only 1.1 reported rapes per 100,000 population, while Sweden, England, and the United States had 30 to 50 times more.2 Of course, it is hard to compare sex crime rates across countries, for while rape is underreported everywhere, the degree of under-reporting varies. The available evidence suggests that Japan has severe under-reporting and non-prosecution problems for rape and other sex crimes. A Cabinet Office survey in 2020 found that only 5.6% of all victims of rape went to the police, which means that for every rape included in Japanese crime statistics, 17 or so do not appear.3 Of the victims who did complain to the police, about half were raped by a stranger even though it is estimated that only 12% of all rapes in the country are committed by strangers. Thus, the vast majority of rapes in Japan are between people who know each other, and few of them are reported and prosecuted.4 While most 1 On Japan’s generally low rates of street crime, see David T. Johnson, “Comparative Reflections on American Crime Declines,” Berkeley Journal of Criminal Law, Vol. 23, No. 2 (2018), pp. 25–45. Note, however, that because Japan has high suicide rates, its rate of lethal violence (homicides + suicides per 100,000 population) is greater than the lethal violence rate in many other developed democracies. See David T. Johnson, “The Vanishing Killer: Japan’s Postwar Homicide Decline,” Social Science Japan Journal , Vol. 9, No. 1 (April 2006), pp. 73–90. 2 Ito Shiori, Black Box: The Memoir That Sparked Japan’s #MeToo Movement (The Feminist Press, 2021, translated by Allison Markin Powell), p. 139. 3 Cabinet Office survey (2020), “Danjokan ni okeru Boryoku ni kan suru Chosa,” at https:// www.gender.go.jp/policy/no_violence/e-vaw/chousa/pdf/r02/r02danjokan-7.pdf. 4 Rape is also underreported and under-prosecuted in other countries, including the United States. For example, the National Crime Victimization Survey for 2019 found more than 450,000 rapes claimed by victims in the United States, of which 30% were known to police,

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sex offenders are men, people of all genders help keep sex crimes quiet and prevent victims from seeking justice, often by wielding the language of “due process” to pursue impunity for the malefactors. Many Japanese remain “blissfully unaware” of these realities.5 Because most rapes occur behind closed doors where a third party is not present, prosecutors tend to regard the scene of the crime as a “black box” which conceals evidence about the critical issue of consent.6 Under Japanese law, “if the victim was unconscious when the crime occurred, there are tremendous hurdles to prosecuting” and prosecutors are extremely cautious about charging.7 As the following case summary illustrates, victims, deterrence, and justice are badly served by this conservative charging policy. Ito Shiori was a twentysomething freelance reporter who had studied journalism and photography at an American university and had traveled to more than 60 countries.8 In April 2015 she told police in Tokyo that she had been raped at the Hotel Miyako by a veteran journalist named Yamaguchi Noriyuki. At the time, Yamaguchi was chief of the compared with less than 6% in Japan. See Barry Latzer, The Myth of Overpunishment (Republic Book Publishers, 2022), p. 107. Similarly, the Rape, Abuse & Incest National Network, estimates that out of every 1000 sexual assaults in the United States, 310 are reported to the police, 50 reports lead to arrest, and just 28 arrests lead to a felony conviction (https://www. rainn.org/statistics/criminal-justice-system). 5 Ito Shiori, Black Box: The Memoir That Sparked Japan’s #MeToo Movement (The Feminist Press, 2021), p. 5. 6 Ito Shiori, Black Box: The Memoir That Sparked Japan’s #MeToo Movement (The Feminist Press, 2021), p. 145. 7 Ito Shiori, Black Box: The Memoir That Sparked Japan’s #MeToo Movement (The Feminist Press, 2021), p. 4. 8 This account of Ito Shiori’s case relies on her memoir, which first appeared in Japanese as Black Box (Bungei Shunju, 2017) and then was translated into English, French, Italian, Swedish, Chinese, and Korean. Many of the themes in Ito’s book are echoed in Kobayashi Mika’s moving account of her own rape victimization and of her efforts to raise awareness about how victims of sex crime are treated in Japan. See Seihanzai Higai ni Au to Iu Koto (Asahi Bunko, 2008) and Seihanzai Higai to Tatakau to Iu Koto (Asahi Bunko, 2016). On Ito’s case, see also these articles by David McNeill in Japan Focus/Asia-Pacific Journal : “Murder of the Soul: Shiori and Rape in Japan” (August 1, 2017); “Justice Postponed: Ito Shiori and Rape in Japan” (August 1, 2018); and “‘I Have No Regrets’” (August 15, 2021). Ito’s case helped spark Japan’s #MeToo movement and attracted considerable attention worldwide (Motoko Rich, “She Broke Japan’s Silence on Rape,” New York Times, December 29, 2017). There is also a moving one-hour documentary of Ito’s case and related issues: “Japan’s Secret Shame”, which was directed by Erica Jenkin and released by BBC in 2018.

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Washington Bureau of the Tokyo Broadcasting System, and Ito had been consulting with him about employment opportunities in the United States. Because of the extensive reporting Yamaguchi had done about Abe Shinzo, who was Prime Minister of Japan in 2006–2007 and again from 2012 to 2020 and who was Japan’s most influential leader until his assassination in July 2022, the senior reporter was well-connected in Japan’s political world.9 On the night of the incident, Ito met Yamaguchi to discuss a visa she needed to work in Washington DC. Yamaguchi was married, Ito was single, and the two had not been romantically involved. They had several drinks together at a bar and a sushi restaurant, and eventually Yamaguchi became aware that Ito was in a “stupor,” perhaps because of drugs that (Ito believed) may have been put in her drink.10 Yamaguchi brought Ito to his hotel room, and sexual intercourse occurred, as both Yamaguchi and Ito have acknowledged. A DNA test of Ito’s bra found biological material matching Yamaguchi, and police gathered footage from the hotel’s security camera which showed that Ito had not entered the hotel under her own power. Yamaguchi had held and carried her from the taxi that dropped them off at the hotel entrance to his room. In addition, police obtained testimony from the taxi driver, who said that while the two passengers were in his car Ito had said several times that she wanted to be dropped off at a nearby train station. The driver also confirmed Ito’s physical incapacity to walk. None of this evidence appeared automatically. Rather, Ito had to push the police to take an interest in her case. She also had to endure a humiliating reenactment of the rape at the police station, with a life-sized dummy and a group of male officers looking on. But eventually police did investigate, and two months after the hotel incident they obtained a warrant to arrest Yamaguchi. On the day the arrest was scheduled to occur (June 8, 2015), while police were awaiting Yamaguchi’s arrival at Narita airport, Nakamura Itaru, chief of Criminal Investigation in 9 Foster King and Mari Yamaguchi, “Abe’s Complicated Legacy Looms Large,” Honolulu StarAdvertiser, July 14, 2022, p. A9. 10 Yamaguchi denied this claim, and Japanese courts eventually ruled that Ito had not proven it, but none of the institutions that responded to her case—police, prosecutors, the medical system, or rape crisis centers—tested her for date-rape substances.

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the Tokyo Metropolitan Police Department, called it off.11 Arrests in Japan are almost never stopped in this way. According to the police, the justification for this last-minute annulment was that the case “does not currently meet the necessary conditions for arrest.”12 Long after this extraordinary action, Nakamura explained the decision to quash the case in terms that greatly dismayed Ito, not least because consenting to socialize does not constitute consent to have sex13 : She [Ito] wanted him [Yamaguchi] to help her find a job, and this expectation is why she went out drinking with him, so it’s a male-female dispute, after all. And she did go along with him to a second restaurant.14

For two years after the hotel encounter, the Japanese media and public learned little about it. Then, in May 2017, the weekly magazine Shukan Shincho published two articles that revealed the fix was in.15 Police officer Nakamura was close to Prime Minister Abe Shinzo’s right-hand man, Chief Cabinet Secretary Suga Yoshihide, who would go on to become Prime Minister after Abe left office in September 2020. In fact, Nakamura served as Suga’s executive secretary and had impressed his boss with his crisis management skills. What is more, when magazine editors emailed an interview request to Yamaguchi, he inadvertently replied with information that indicated he had been communicating with Kitamura 11

Fukafue Yoshiya, “Yamaguchi Noriyuki-shi no Taiho o Chushi Shita Nakamura moto Keiji Bucho ga Keisatsucho Chokan Mokuzen…Abe Seiken-ka de Daishusse,” Business Journal , January 12, 2020. 12 Ito Shiori, Black Box: The Memoir That Sparked Japan’s #MeToo Movement (The Feminist Press, 2021), p. 118. 13 Fallacious reasoning about consent is common in Japan. Consider these levels of agreement in an NHK survey on “Things That Lead You to Think That the Other Person Consents to Sex”: eating together, just the two of you (11%); wearing revealing clothing (23%); getting in a car, just the two of you (25%); drinking together, just the two of you (27%); and being drunk (35%). See David McNeill, “‘I Have No Regrets’,” Japan Focus/Asia-Pacific Journal , Vol. 19, Issue 16 (August 15, 2021). 14 Ito Shiori, Black Box: The Memoir That Sparked Japan’s #MeToo Movement (The Feminist Press, 2021), p. 210. 15 For more on police official Nakamura Itaru, see Shukan Gendai, “Kan,” June 27, 2017, p. 59. And for an argument that Prime Minister Abe Shinzo may have helped to kill this case, see Jake Adelstein, “Is Japan’s Top Politician Behind a Shameful Rape Cover-Up?,” The Daily Beast, June 20, 2017.

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Shigeru, the Director of Cabinet Intelligence and a member of Abe’s inner circle. In short, Japan’s political elite apparently used their connections with high-level police officials to quash a friendly reporter’s arrest warrant.16 Thereafter, Yamaguchi’s fawning coverage of Abe made him a journalistic star and a frequent commentator in the Japanese media,17 and Nakamura would become (in 2021) Commissioner General of the National Policy Agency (keisatsucho chokan)—the highest ranking police officer in the country. Despite abundant evidence—Ito’s statements about the events at Hotel Miyako, the hotel video, Yamaguchi’s DNA, his admission that he had sex with Ito, and the taxi driver’s testimony—prosecutors concluded that there was “insufficient evidence” (kengi fujubun) to charge Yamaguchi with “quasi-rape” (jun-gokan, which became junseikotozai following a law reform in 2017), the “sort of ” sex crime involving a person who has passed out or is unable to resist (see Chapter 4). Here is how the prosecutor in charge explained the non-charge decision to Ito: I think that Mr. Yamaguchi was really wrong to have done what he did…his actions are absolutely inexcusable…From the prosecution’s side, he could be convicted but, to be frank, it’s difficult with the evidence we have. He’s a deplorable man. He’s habituated to this behavior – I can’t help but think he’s done this to others…In Japan, sex crimes are very difficult to prove. Japanese criminal law tends to place tremendous subjectivity upon the suspect. And of course, since it’s rare for the suspect to admit to the crime, they say it was ‘consensual’…In Japan, even when the suspect’s guilt is clear, objective circumstances on their own are not enough for a conviction unless there is an admission of guilt. Powerful evidence is required. For instance, pictures or audio documenting the crime, or third-party eyewitnesses. Something along those lines…18

16

Ito Shiori, Black Box: The Memoir That Sparked Japan’s #MeToo Movement (The Feminist Press, 2021), pp. 183–186. 17 See, for example, two books on Abe Shinzo by Yamaguchi: Sori (Gentosha, 2017), and Anto (Gentosha, 2017). 18 Ito Shiori, Black Box: The Memoir That Sparked Japan’s #MeToo Movement (The Feminist Press, 2021), pp. 135–136.

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Like most victims of rape, Ito did not have “pictures or audio” documenting the crime (she was unconscious when it occurred). And there were no “third-party eyewitnesses” in Yamaguchi’s hotel room (rapists rarely have an audience). But there was the hotel video and the taxi driver’s testimony, and most importantly, there were Ito’s many statements to police and prosecutors, that she had been sexually violated without her consent. If police and prosecutors had believed her that may have made all the difference, just as it would for many of the 30% of women worldwide (aged 15 and older) who say that they have been victimized by intimate partner violence, non-partner sexual violence, or both.19 But when it comes to sex crime, victims are often not deemed “credible,” in two ways: there is a failure to believe that the abuse took place, and there is also a failure to believe that the abuse matters.20 Both forms of disbelief frequently shape the decision-making of Japanese police and prosecutors. Police and prosecutors did not believe Ito. Ordinarily, this would have been the end of the matter: the victim must learn to live with it, and the offender may be emboldened to do it again. But Ito persisted, conducted her own investigation, and eventually submitted a petition to a PRC in Tokyo, asking the 11 members of that panel to review the prosecutors’ non-charge decision. Four months later, in September 2017, the PRC ruled that “non-prosecution is appropriate” (fukiso soto), as PRCs do in more than 90% of the uncharged rape cases that they review. There was no explanation, leaving some observers to wonder whether the same cultural forces that influenced police and prosecutors—especially concerns about the victim’s “credibility”—also shaped the decision-making of citizens in the PRC. It appears Ito was not only the victim of a sexual assault; she was also the victim of a “credibility discount,” which is the unwarranted dismissal of someone based

19

UN Women (February 2022), “Facts and Figures: Ending Violence against Women,” at https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures. 20 Deborah Tuerkheimer, Credible: Why We Doubt Accusers and Protect Abusers (Harper Wave, 2021); and Barbara Bradley Hagerty, “An Epidemic of Disbelief,” The Atlantic, August 2019.

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not on evidence or fact but rather on the basis of biases, misconceptions, and false assumptions.21 Credibility discounting is especially common when allegations of sexual assault are made (as they were in this case) by a socially weak person against a powerful one. There is also a tendency in Japanese legal culture to blame victims of crime for being complicit if their victimization involved intoxication that somehow can be construed as “voluntary.” This cultural lean, that “drunks are responsible for themselves,” may have hurt Ito too.22 For these reasons, there was no criminal justice for Ito Shiori and no criminal accountability for Yamaguchi Noriyuki. But sexual assaults are not just crimes; they are also civil rights violations. In civil litigation initiated by Ito, the Tokyo District Court awarded her 3,300,000 yen ($33,000) in damages and dismissed Yamaguchi’s countersuit (in December 2019). This is the same amount of money that was awarded to the young female golfer in Kagoshima after that “quasi-rape” case of mandatory prosecution ended in acquittal (see Chapter 4), and it is less than half the per capita income of a person living in Tokyo, the city where Ito resided. In January 2022, the Tokyo High Court found that Ito had not consented to sex with Yamaguchi and upheld the lower court order for Yamaguchi to pay 3.3 million yen in damages. The civil case concluded in July 2022 when the First Petty Bench of Japan’s Supreme Court ruled unanimously (5-0) that Yamaguchi had sexually assaulted Ito while affirming a part of the Tokyo High Court decision which found that there was inadequate evidence to corroborate Ito’s claim that Yamaguchi had slipped her a date rape drug.23 In Japan, out-of-court settlements (jidan) are often used to prevent victims of sex crime from filing criminal complaints and civil suits, or 21

Deborah Tuerkheimer, Credible: Why We Doubt Accusers and Protect Abusers (Harper Wave, 2021). 22 Mark D. West, Drunk Japan: Law and Alcohol in Japanese Society (Oxford University Press, 2020), p. 121. 23 The Supreme Court ordered Yamaguchi to pay 3.3 million yen in damages to Ito (she had sought 11 million yen), while ordering Ito to pay Yamaguchi one-sixth that amount (550,000 yen) for defamation, which was less than one-half of one percent of the 130 million yen sought by Yamaguchi in his countersuit and approximately one-tenth the average amount of damages awarded in defamation cases in Japan. See Toyama Kazuhiro, “Japan’s Top Court Awards Damages to Journalist Shiori Ito in Rape Case,” The Mainichi, July 9, 2022.

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to withdraw actions they have already taken.24 In 2010, for example, victims withdrew their complaints after settlements in more than onethird of all sex crime cases in the country.25 Some may wonder why women who were raped accept financial payment in return for dropping a case against the offender. Ito did not do that, but considering the skepticism with which police, prosecutors, and citizens routinely handle rape complaints, her case illustrates the fact that settling can be a rational decision for some victims. Similarly, at least half of the citizens serving on the PRC did not believe Ito. Perhaps they felt “himpathy” for Yamaguchi, which is a common concern for men accused of wrongdoing that sees female complainants not as victims of crime but as “untrustworthy threats to the good names of good men.”26 (If the central truth of socio-legal study is that law reflects society, then the PRC surely reflects Japanese society as well.) Or perhaps the PRC’s evaluation of the case against Yamaguchi was shaped by the court personnel who administered that institution, a possibility that was described in Chapter 2. We do not know because this PRC (like most PRCs) did not say. But we do know that if some members of this PRC wanted to investigate Ito’s case more thoroughly, they lacked the resources and the investigative tools to do so. In the end, by concluding that it was appropriate not to charge Yamaguchi, this PRC illustrates the limits of the institution and the limited capacity of the criminal process to accomplish criminal justice. When Ito held a press conference shortly after filing her petition with the PRC, she was widely rebuked for wearing a shirt that was deemed too revealing. In this cultural context, it is hardly surprising that many sex crime victims head for cover rather than law.27 Ito herself moved to England to escape hate mail and media bashing before moving back to Japan during the pandemic. She also sued three of her most prominent attackers, including a former professor at Tokyo University and Sugita 24

David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford University Press, 2002), pp. 201–210. 25 Ito Shiori, Black Box: The Memoir That Sparked Japan’s #MeToo Movement (The Feminist Press, 2021), p. 125. 26 Alexandra Brodsky, Sexual Justice (Metropolitan Books, 2021), p. 6. 27 Catherine Burns, Sexual Violence and the Law in Japan (Routledge, 2005).

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Mio, a conservative politician who suggested that Ito was to blame for her own assault and who repeatedly “liked” tweets defaming Ito. In 2020 Ito was investigated by Japanese police after Yamaguchi filed a complaint for criminal defamation (the case was apparently dropped). That was “shocking,” she said, but she also says she has “no regrets,” and she insists her decision to speak out was correct: It has been difficult but rape is visible now. We see more cases in the media, we’ve had demonstrations in Tokyo and in many other cities … Keeping my shame and anger to myself wouldn’t have changed anything. That is why I have decided to write this book – to speak my mind and to expose the problems that need to be addressed.28

The last chapter of Ito’s memoir is titled “Bearing Witness.” In it, she restates the main facts of her case and concludes with a poignant question. Here are her words. The following are the objective facts about what happened that night, either confirmed by Mr. Yamaguchi or clarified in the investigation and testimony: – Noriyuki Yamaguchi, TBS Washington bureau chief, and I, freelance journalist, met to discuss the visa I needed in order to work in TBS’s Washington bureau. – We were not romantically involved. – Mr. Yamaguchi was aware that I was in a drunken stupor. – Mr. Yamaguchi brought me to his hotel room. – Sexual intercourse occurred. – The results of a DNA test performed on my bra detected biological material matching Mr. Yamaguchi’s Y chromosomes. – After gathering evidence from the hotel security camera footage and the taxi driver’s testimony, the police requested an arrest warrant, which was granted and issued by the court. – On the day of the arrest, while investigators were awaiting Mr. Yamaguchi’s arrival at the airport, the execution of the arrest

28

Quoted in David McNeill, “‘I Have No Regrets’,” Japan Focus/Asia-Pacific Journal , Vol. 19, Issue 16 (August 15, 2021).

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warrant was suddenly called off, in accordance with the decision of Itaru Nakamura, chief of TMPD’s Criminal Investigation. The public prosecutor and the [PRC], with knowledge of these facts, decided to dismiss the case as ‘nonprosecutable.’ So, what do you think?

∗ ∗ ∗ Trust is a foundational concept in social science,29 and it is trust that makes politics, markets, and law function effectively. But cases like this one betray victims and undermine the trust on which criminal justice depends. Ito’s gritty effort to get criminal justice done did not succeed, but her case raised awareness of the many ways in which victims of sex crime in Japan are muted, marginalized, and mistreated.30 Her case also crystalizes two of this book’s core claims: some cases which should be criminally charged are not, and PRCs fail to rectify many of those injustices. My own trust in Japanese publishing was called into question when I tried to write about Ito’s case for the co-authored Japanese version of this book.31 Despite detailed reporting about Ito’s case in many other 29

Benjamin Ho, Why Trust Matters: An Economist’s Guide to the Ties That Bind Us (Columbia University Press, 2021). On trust and criminal law enforcement in Japan, see Mai Sato, “Police Legitimacy and Public Cooperation: Is Japan an Outlier in the Procedural Justice Model?,” in Dietrich Oberwittler and Sebastian Roche, editors, Police-Citizen Relations Across the World: Comparing Sources and Contexts of Trust and Legitimacy (Routledge, 2018), pp. 108–126. 30 As explained in the “golf instructor quasi-rape case” in Chapter 4, a reform to Japan’s Penal Code in 2017 expanded the definition of “rape” to include forced oral and anal penetration, lengthened sentences for some sex crimes, and permitted prosecutors to move forward without the victim’s consent, but it did not change the law of “quasi-rape” (jun-gokan). As of 2022, the Penal Code still states that if a person has sex with a victim who was intoxicated or who was in a mental state that made it difficult to refuse a sexual advance, the act is regarded as quasi-rape, not rape. Japan’s reformed law also falls short of international standards by requiring proof of “violence or intimidation” rather than focusing on the issue of consent. See Tomohiro Osaki, “Diet Makes Historic Revision to Century-Old Sex Crime Laws,” Japan Times, June 16, 2017; Hiroko Goto, “Japanese Sex Crime Law Reform,” Lecture at Temple University in Tokyo, March 29, 2018; and David T. Johnson, “Is Rape a Crime in Japan?,” paper presented at the conference on “Deviance and Norms in Times of Change in Japan,” German Association for Social Science Research on Japan (VSJF), Zurich, Switzerland, November 18–20, 2022. 31 David T. Johnson, Mari Hirayama, and Hiroshi Fukurai, Kensatsu Shinsakai: Nihon no Keiji Shiho o Kaeru ka [The Prosecution Review Commission: Will It Change Criminal Justice in Japan?] (Iwanami Shinsho, 2022).

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countries and by a few non-mainstream journalists in Japan, an editor for one of the country’s premier publishing companies insisted that our account omit real names and detailed descriptions of facts, evidence, and allegations. In Japan’s patriarchal society, there is a strong tendency to doubt women who complain about sexual victimization and to protect men who are accused of such misconduct.32 Of course, these patterns of behavior exist in other nations too.33 The legal context for the publishing company’s caution was concern about being sued. A decision by Japan’s Supreme Court in 1994 found an author (and former juror) liable for using the real name of a criminal defendant in his award-winning book about a jury trial that had occurred in Okinawa before the prefecture’s reversion to Japan in 1972.34 The author claimed he could not avoid using the defendant’s name because his purpose was to show that the defendant was innocent of the crime for which he had been convicted and sentenced to three years imprisonment. But Japanese courts ruled that the real name did not need to be used, and they concluded that its use had damaged the man’s reputation. In 1994 the country’s top court awarded the man 500,000 yen in damages (about $4500). Other judicial decisions in Japan reflect and reinforce a principle that subordinates the value of truth to the protection of the privacy and reputation of criminal suspects, defendants, and offenders. While I was writing this chapter in the summer of 2022, another decision by Japan’s Supreme Court ordered

32

On patriarchy in Japan, see the World Economic Forum’s Gender Gap Report, which finds that Japan routinely ranks last among major developed nations for gender parity (Shinya Wake, “Japan Dead Last for Gender Parity among Major Developed States,” Asahi Shimbun/Asia & Japan Watch, July 13, 2022); Catherine Burns, Sexual Violence and the Law in Japan (Routledge, 2005); Joyce Gelb, “Gender Equity in Japan,” in James Babb, editor, The Sage Handbook of Modern Japanese Studies (Sage, 2015), pp. 210–221; and Human Rights Watch, “Japan’s Not-So-Secret Shame,” July 29, 2018. 33 See, for example, Barbara Bradley Hagerty, “An Epidemic of Disbelief,” The Atlantic, August 2019; Deborah Tuerkheimer, Credible: Why We Doubt Accusers and Protect Abusers (Harper Wave, 2021); and Rachel Vogelstein and Megan Stone, Awakening: #MeToo and the Global Fight for Women’s Rights (PublicAffairs, 2021). 34 The book is Isa Chihiro’s Gyakuten: Amerika Shihaika, Okinawa no Baishinseido [Reversal: Okinawa’s Trial by Jury Under US Occupation] (Shinchosha, 1977). The Supreme Court’s 1994 decision upheld the Tokyo District Court’s 1987 decision and is summarized in UPI Archives, “Court Orders Author to Pay for Revealing Criminal Record,” February 8, 1994.

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Twitter to delete a tweet that contained an individual’s arrest record.35 The four Justices sitting on that bench unanimously agreed that the record should be deemed “private” because an arrest is a stigmatizing fact. In response, critics contended that this tendency to protect reputation “is very dangerous” and “a great threat to the right to expression and freedom of information.”36 Criminal labels are stigmatizing, perhaps nowhere more than in Japan.37 There are also many good reasons to encourage and enable suspects and offenders to reintegrate into society.38 But in my view, Japanese courts sacrifice too much truth in their effort to protect reputation and promote reintegration. They also presume that it is appropriate for state officials—police and prosecutors especially—to control criminal justice information that is true and in the public interest. This seems problematic too. As for the threat of litigation, Japanese defamation law differs from American law in that it has stricter liability rules for speakers—rules that are supposed to provide the same protection to “public” and “private” figures.39 In one study, the win rate for Japanese plaintiffs in published defamation cases was approximately 70%, compared with an 35

The Supreme Court’s decision in the Twitter case is at https://www.courts.go.jp/app/files/ hanrei_jp/265/091265_hanrei.pdf. For critical analysis of that decision, see Takano Takashi, “Taihoreki-Zenka wa Puraibashii ka,” in Keiji Saiban o Kangaeru: TakanoTakashi@burogu (June 26, 2022), at http://blog.livedoor.jp/plltakano/archives/65984206.html. Law in some other countries has adopted similar policies about information control in sex crime cases, including China (Alexandra Stevenson and Zixu Wang, “Battling Violence and Censors, Women in China Become ‘Invisible and Absent’,” New York Times, September 6, 2022), Sweden (Jenny Nordberg, “The Truth Is No Defense,” New York Times, March 20, 2022), and Britain, which traditionally had a strict liability rule for defamation, though that has been changing since the House of Lords developed a qualified privilege protecting freedom of expression (Reynolds v. Times Newspapers, 1999). 36 Email from Takano Takashi (June 24, 2022), a prominent defense attorney and the author of Hitojichi Shiho [Hostage Justice] (Kadokawa Shinsho, 2021) and many other works on criminal justice in Japan. 37 Mari Kita, “Proxy Justice: Families of Offenders in Contemporary Japan,” PhD dissertation, Department of Sociology, University of Hawaii at Manoa, May 2018. 38 John Braithwaite, Crime, Shame and Reintegration (Cambridge University Press, 1989). 39 For a cogent summary of Japanese defamation law and empirical analysis of a sample of 232 civil defamation cases that were filed against media from 2000 to 2009, see Noriko Kitajima, “The Protection of Reputation in Japan: A Systematic Analysis of Defamation Cases,” Law & Social Inquiry, Vol. 37, Issue 1 (Winter 2012), pp. 89–118.

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“overall success rate” of just 17% for defamation plaintiffs in the United States.40 On the other hand, compensatory damages to defamation plaintiffs are much lower in Japan than in the United States, partly because Japan’s civil law system does not have juries or punitive damages. In addition, book publishers in Japan are seldom sued for defamation; the vast majority of cases are filed against weekly magazines and daily newspapers.41 In reality, therefore, Japanese courts often protect freedom of speech and promote robust debate about issues of public concern, thereby enforcing a standard for defamation liability that is actually quite “similar to that prevalent in the United States.”42 A disagreement with the editors of a publishing company does not directly relate to the operations of the PRC, but it does illustrate some of the obstacles that victims of sex crime encounter in Japan. Most notably, law and culture make it difficult for women and girls to speak clearly and truthfully about some of the most awful experiences they will ever have. Law and culture also enable police, prosecutors, and PRCs to discount the credibility of victims of sex crime and thereby support the underreporting and under-prosecution of sex crime.43 More of these cases need to be reported and charged in Japan’s criminal justice system.44 For that

40

Note, however, that “due to the difference in legal systems between Japan and the United States, it is not very meaningful to compare these [win rate] ratios and numbers.” See Noriko Kitajima, “The Protection of Reputation in Japan: A Systematic Analysis of Defamation Cases,” Law & Social Inquiry, Vol. 37, Issue 1 (Winter 2012), p. 100. 41 Noriko Kitajima, “The Protection of Reputation in Japan: A Systematic Analysis of Defamation Cases,” Law & Social Inquiry, Vol. 37, Issue 1 (Winter 2012), p. 107. 42 Noriko Kitajima, “The Protection of Reputation in Japan: A Systematic Analysis of Defamation Cases,” Law & Social Inquiry, Vol. 37, Issue 1 (Winter 2012), p. 116. 43 On the impunity routinely enjoyed by sexual molesters (chikan) in Japan, see Saito Akiyoshi, Otoko ga Chikan ni Naru Riyu (East Press, 2017); and Yuri Murakami, “Lawyer Who Was Groped on Train Wins Legal Battle, Shares Her Story,” Asahi Shimbun/Asia & Japan Watch, September 2, 2022. 44 Using available statistics on the reporting, recording, and charging of sex crimes, I estimate that for every 1000 rapes in Japan, only 20 or so result in criminal charges. David T. Johnson, “Is Rape a Crime in Japan?,” paper presented at the conference on “Deviance and Norms in Times of Change in Japan,” German Association for Social Science Research on Japan (VSJF), Zurich, Switzerland, November 18–20, 2022.

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to happen, the country cannot continue to perpetuate a culture of disbelief and disregard for the victims and survivors of sex crime.45 In this sense, cultural change and legal change must go hand in hand.

Lessons It will take time to discern the full effects of Ito’s case and the fate of Japan’s #MeToo Movement. A significant change for the better may take years or even decades—and progress is not assured in Japan or any other jurisdiction.46 In New York City, the epicenter of America’s #MeToo movement, prosecutors rejected a greater percentage of sex crime cases after the case against film producer Harvey Weinstein triggered a national reckoning than they did before it,47 and police clearance rates for rape cases in the city dropped from 47% in 2017 to 31% in 2021.48 In 2022, after rape survivors and victim advocates had spent years pushing city and state officials to do better, the U.S. Department of Justice finally announced that it would investigate the NYPD’s highly problematic handling of sex crimes.49 Similarly, if a random sample of Americans were asked to name the worst criminal offenders in their country, the sexual predator Jeffrey Epstein would probably have ranked high on 45 See, for example, Catherine Burns, Sexual Violence and the Law in Japan (Routledge, 2005); Ito Kazuko, Naze, Sore ga Muzai na no ka!? Seihigai o Keishi Suru Nihon no Shiho (Discover, 2019); Asahi Shimbun/Asia & Japan Watch, “Outrage at Acquittals in Rape Cases Spark Calls to Fix Japanese Law,” June 10, 2019; and Spring, “‘Seihigai no Jittai Chosa Anketo’ Bunseki no Hokokusho o Kokai Shimasu,” December 24, 2020, at http://spring-voice.org/news/200809 survey_report/. 46 On law, society, and sex crimes in the United States, see Alexandra Brodsky, Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash (Metropolitan Books, 2021); and Michelle Bowdler, Is Rape a Crime? A Memoir, an Investigation, and a Manifesto (Flatiron Books, 2020). And on the #MeToo movement worldwide, see Rachel Vogelstein and Meighan Stone, Awakening: #MeToo and the Global Fight for Women’s Rights (PublicAffairs, 2021). 47 Honolulu Star Advertiser, “Many Rape Cases Continue to Be Dropped in New York,” July 19, 2021, p. A4. 48 Ashley Southall, “‘Negligent and Sexist’: Why Rape Survivors Asked Feds to Investigate N.Y.P.D.,” New York Times, July 28, 2022. 49 Ashley Southall, “‘Negligent and Sexist’: Why Rape Survivors Asked Feds to Investigate N.Y.P.D.,” New York Times, July 28, 2022.

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many lists before he hanged himself in a federal jail in 2019. Before his demise, Epstein benefited from several sweetheart deals with American prosecutors.50 And in the U.S. military, nearly one in four servicewomen reports being sexually assaulted, but less than one in a hundred of their reports end in a sex-offense conviction.51 In these and other respects, America is hardly a model for reform in Japan. It is also a cautionary tale about the difficulty of altering long-established patterns and practices for handling sex crimes. More generally, the impacts of criminal justice reform take a long time to appear,52 and it is too soon to reach strong conclusions about the effects of the reform of Japan’s PRC Law that enabled mandatory prosecution by a panel of 11 citizens as of 2009. But there are lessons to learn about the Prosecution Review Commission from the evidence presented in this book. This section summarizes ten of the most important ones.

It Is Possible to Check Prosecutors’ Non-charge Decisions Prosecutors in Japan are cautious about charging cases (some critics even say they are “cowardly”), and this helps explain why the country’s conviction rate is so high. Many criminal suspects who would get charged in other systems of criminal justice do not get charged in Japan. This is, on the whole, a positive pattern, for the criminal sanction has limited capacity to do good and great potential for doing harm. Nonetheless, there are many criminal cases in Japan that should be charged but are not. The PRC system of citizen review was designed to address this problem. And of course, this is not only a Japanese problem, for there are few checks on the prosecutor’s decision not to charge in other countries as well. In comparative perspective, Japan’s PRC stands out as an effort to tame one of the most awesome powers that a government exercises—and 50

Julie K. Brown, Perversion of Justice: The Jeffrey Epstein Story (Dey Street/William Morrow, 2021). 51 Melinda Wenner Moyer, “‘A Poison in the System’: The Epidemic of Military Sexual Assault,” New York Times Magazine, August 3, 2021. 52 Malcolm Feeley, Court Reform on Trial: Why Simple Solutions Fail (Basic Books, 1983).

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a major source of criminal injustice. In this sense the PRC is an experiment in democratic prosecution. Overall, the evidence presented in this book shows that while the PRC system is far from perfect, it is important because it illustrates a possibility that most systems of criminal justice fail to recognize. That is, the discretion of prosecutors not to charge can be checked through citizen review.

Origins The PRC Law of 1948 was created during the postwar occupation as the product of compromise between American officials who wanted to democratize criminal justice in Japan and Japanese officials who resisted the American push for grand juries and the election of chief prosecutors. In this way, the PRC was born as much from practical and political considerations as from moral and jurisprudential ones.

Legitimation Effects The most fundamental fact about PRCs is that they support prosecutors’ non-charge decisions in the vast majority of cases that they review. In the five years from 2015 to 2019, PRCs issued “non-prosecution is appropriate” (fukiso soto) decisions in 95% of the cases they reviewed, while for the seven decades from 1949 to 2019 the figure is 85%. Some analysts invoke numbers such as these to suggest that PRCs perform no meaningful oversight function. In fact, when I started this research that was my view too. But I have changed my mind, for two reasons. First, PRCs are challenging prosecutors 5 to 15% of the time, which is much higher than the rate at which Japanese courts challenge prosecutors’ charge decisions by issuing “not-guilty” verdicts. Second, by supporting prosecutors’ non-charge decisions, PRCs bolster public confidence in prosecutorial decision-making and in Japanese criminal justice more generally. This legitimation function is “conservative” in that it helps maintain existing power relations by fostering the consent and acquiescence of media and society. But authority without legitimacy is raw power, and legal systems

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that lack legitimacy do not work well.53 There are plenty of problems in Japanese criminal justice, and I have described some of them in this book and in other works. But there are impressive accomplishments too. The predominant pattern of PRC support for non-charge decisions suggests that prosecutors can take credit for some of them.

Kickback Effects In the early postwar years PRCs in Japan were quite active in several respects. They issued general “proposals and recommendations” to chief prosecutors, they initiated case reviews through their own ex-officio powers, and they challenged non-charge decisions more often than they did in subsequent years. But over time PRCs have become more passive in these respects, so that at present they seldom issue general proposals and recommendations, they rarely initiate their own case reviews, and they challenge non-charge decisions less often than they used to. This helps explain why many observers have come to see PRCs as weak, underutilized, and obscure. In 2009, such perceptions led to a reform of the PRC Law that makes prosecution mandatory in some circumstances, but even before this reform reality was more complicated than those perceptions suggested. In fact, while PRCs reviewed fewer noncharge decisions in the 2000s and 2010s than they did in the first few decades of their existence, prosecutors have been changing-to-charge more of the uncharged cases that PRCs kickback to them. Since 2001, prosecutors have changed a non-charge decision to “charge” in 22% of the cases that PRCs kicked back, compared with a change rate of only 7% for the previous half-century (1949–2000). In some recent years the changed-to-charge rate exceeded one-quarter, and in two years (2002 and 2006) it exceeded one-third. In short, prosecutors today rethink many of their non-charge dispositions in response to PRC recommendations. This under-appreciated reality is the result of two related changes that

53

Gary LaFree, Losing Legitimacy: Street Crime and the Decline of Social Institutions in America (Westview Press, 1998).

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evolved in tandem over time: PRCs have become less inclined to challenge prosecutors’ non-charge decisions, and prosecutors have become more inclined to follow PRC recommendations. We could call this an equilibrium of sorts—a state in which opposing influences are balanced.

Shadow Effects In addition to legitimation effects and the impacts of PRC kickbacks, there is a pervasive PRC influence that is often overlooked: prosecutors know about the possibility of PRC review, and they frequently make charge decisions in the shadow of this reality. It is impossible to say precisely how often this “shadow effect” alters prosecutors’ decisionmaking, but this research finds that they routinely make decisions with the possibility of a citizen check in mind. This is the PRC’s most prevalent impact, and it has probably become more common since the reform took effect in 2009 because the prospect of mandatory prosecution now confronts prosecutors with the possibility of a binding “or else.” As married couples and their attorneys “bargain in the shadow of the law” when negotiating the terms of a divorce,54 prosecutors “charge in the shadow of the PRC” because the reality of a kickback is time-consuming and cumbersome, and because there is a record of outcomes in similar cases for them to consult. In this way, the PRC provides a framework within which prosecutors determine how to proceed, and its impact can be great even when it is not actively reviewing a case. A shadow effect cannot be captured by official statistics, but that does not mean it should be ignored.

Few Mandatory Prosecutions and Convictions The advent of mandatory prosecution in 2009 was hailed by some and excoriated by others, but the actual impacts of this reform are more complicated than supporters and critics anticipated. PRCs initiated 54

Robert H. Mnookin and Lewis Kornhauser, “Bargaining in the Shadow of the Law: The Case of Divorce,” Yale Law Journal , Vol. 88, No. 5 (April 1979), pp. 950–997.

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forcible indictment (kyosei kiso) only 10 times in the first 12 years after this reform took effect. Only 14 people were charged in this way, and just two were convicted (neither was punished harshly). This low conviction rate of 14% has led some pundits to proclaim that PRCs are mandating prosecution too often, thereby transgressing the rights of the criminally accused. But ten cases in twelve years is hardly an avalanche, and when the details of these cases were examined in Chapter 4, there were few signs that PRCs are overdoing it. What is more, when white-collar offenses are distinguished from other crimes, we saw that mandatory prosecution has been considerably less successful in the former than the latter. In my view, this is not evidence that PRCs are being too aggressive, for white-collar crime and corporate crime remain severely under-prosecuted in Japan, as they are in many other countries. Rather, the difficulty of convicting white-collar offenders who have been prosecuted by a PRC illustrates some important general truths about the way criminal law works in the world. Almost everywhere, it is difficult to convict white-collar offenders. And almost everywhere, criminal law enforcement is more aggressive toward the have-nots in society than it is toward the rich, powerful, and well-connected. That “downward law is greater than upward law” is a well-documented and widespread problem.55 The PRC institution will not fix this problem, but it can help identify and alleviate some of its most troubling manifestations.

The Challenge of Controlling White-Collar Crime The mandatory prosecution of three TEPCO executives illustrates the previous point. They were acquitted at trial in 2019, but their indictment produced some measure of justice for thousands of people who were victimized by that corporation’s recklessness, and it also led to the discovery of important facts that otherwise would have remained buried and concealed. One of the greatest legal challenges of the modern era is how to make corporations act in ways that are socially responsible 55

Donald Black, The Behavior of Law (Academic Press, 1976), pp. 21–30; and David T. Johnson, “Nihon no ‘Kumo no Su’ Shiho to Kensatsu Katsudo,” in Ibusuki Makoto et al., editors, Keiji Shiho o Ninau Hitobito (Iwanami Shoten, 2017), pp. 29–51.

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when the main imperative of corporate law is promoting the pursuit of profit. Of course, the PRC is not a magic bullet. It will not and it cannot tame the terrible tendency of corporations to externalize harms on non-consenting people. But the PRC could be part of a package of responses that would remake corporations into something less psychopathic (see Chapter 5). This will not be easy, and it will be impossible unless we remember a subversive truth: corporations are our creations. They have no powers and no capacities beyond what people, through their governments, give them.56

Knowledge Gaps The basic PRC review process was described in Chapter 2, but in some respects we still know little about how PRCs actually operate. Two knowledge deficits are especially notable. First, PRCs are not transparent about their decision-making. When a PRC in Tokyo concluded that the non-prosecution of Yamaguchi Noriyuki was appropriate, Ito Shiori was left in the dark about the reasons for that decision. Many other crime victims and PRC petitioners feel similarly left in the lurch. Second, we know little about how the court clerks and court assistants who staff the PRC Office influence PRC review. In short, we know a lot about the PRC law-on-the-books but little about how this institution works in actual practice. But it is possible to generate hypotheses about how PRCs are actually administered, and here is my most important hunch: PRC officers have considerable influence over what cases PRCs focus on and what dispositions they reach, probably in ways that tend to conform to Japan’s criminal justice status quo. If the point of the PRC is to make criminal prosecution more democratic by making charge decisions better reflect public sensibilities, then official influence of this kind is problematic. There needs to be more public discussion of this subject, and for that to occur the public needs to know more about what the PRC Office

56

Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power (Free Press, 2004); and Joel Bakan, The New Corporation: How “Good” Corporations Are Bad for Democracy (Vintage Books, 2020).

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actually does. Ironically, efforts to learn more of the facts about an institution for promoting more “democratic” prosecution were resisted by the same office that is supposed to promote that mission.

Citizen Satisfaction Many people who are called to serve on PRCs are unenthusiastic about performing this civic duty, but after serving almost everyone says the experience was meaningful. Of course, citizen satisfaction does not mean “mission accomplished.” Indeed, Japan has put too much stress on minimizing the “burden” (futan) felt by citizens who serve as lay judges (saibanin) at the criminal trial, thereby displacing some of the main aims of that other form of lay participation, such as fairness, justice, and accuracy.57 A similar problem may plague PRCs, though I cannot be sure, for little is known about the behavior of court officials in the office that administers them. But even if PRC members are on the receiving end of pacifying treatment as “honorable guests” (okyaku sama atsukai), the fact that almost all of them report positively about their experience is encouraging. It would be cause for concern if many PRC members said they felt like impotent ornaments, but there has been little feedback of this kind. Perhaps the citizens who have served on PRCs should be taken at their word.

PRC Dangers This recitation of lessons has stressed positive functions and findings because that is what the research has revealed and because previous research has failed to acknowledge some of the foregoing truths. But make no mistake, PRCs can also be dangerous and problematic. There are two key points. First, the power to prosecute is awesome no matter who wields it, and when misused or overused it can cause grave harm. There is no compelling evidence that PRCs are, in the aggregate, pushing 57

David T. Johnson and Dimitri Vanoverbeke, “The Limits of Change in Japanese Criminal Justice,” Journal of Japanese Law, Vol. 25, No. 49 (2020), pp. 109–165.

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for prosecution too often. If anything, they need to be invigorated so that they challenge prosecutors more frequently, especially in sex crime and white-collar crime cases. But wrongful prosecutions do occur as a result of PRC intervention. As described in Chapter 4, one such case may be the mandatory prosecution of politician Ozawa Ichiro, which was partly driven by the beliefs and motives of prosecutors with whom PRCs interacted. Ozawa was ultimately acquitted, but his prosecution did lasting damage to his political career and to the prospects of some political parties that opposed the conservative ruling party, the LDP.58 Similarly, the prosecution of Yamada Etsuko for murder following the deaths of two young children in 1974 was initiated by a PRC kickback that concluded her non-prosecution was not appropriate (fukiso futo). The case against Yamada only ended a quarter-century later when she was acquitted at trial for a third time. Getting her life back required a 25-year fight against prosecutors who refused to rethink their “changedto-charge” decision even after multiple courts ruled against them. This “Kabutoyama case” is a cautionary tale about the risk of wrongful prosecution—and the risk of taking PRC recommendations too uncritically.59 The second point is that PRCs should proceed with special caution when the crime in question is professional negligence resulting in death or injury, because the criminal sanction works best when the conduct it responds to is prominent in most people’s view of socially threatening behavior, when it is not condoned by significant segments of society, and when “there are no reasonable alternatives to the criminal sanction for dealing with it.”60 In Japan and other countries, negligent acts sometimes meet these demanding criteria—but not always.61 The further away one 58

In addition to the case study presented in Chapter 4, see also two critical books about the mandatory prosecution of Ozawa: Mori Yuko, Kensatsu no Wana: Ozawa Ichiro Massatsu Keikaku no Shinso (Nihon Bungeisha, 2012); and Hirano Sadao, Ozawa Ichiro Kanzen Muzai: ‘Tokko Kensatsu’ ga Okashita Nanatsu no Otsumi (Kodansha, 2011). 59 Ueno Masaru and Yamada Etsuko, Kabutoyama Jiken: Enzai no Tsukurarekata (Gendai Jinbunsha, 2008). 60 Herbert Packer, The Limits of the Criminal Sanction (Stanford University Press, 1968), p. 296. 61 In Germany, too, professional negligence is sometimes the target of criminal investigation and prosecution. See, for example, the investigation of a town mayor for manslaughter following a flood that killed 189 people. His accusers claimed the loss of life resulted from his failure to sound alarms and issue evacuation orders in a timely manner. Katrin Bennhold, “After Deadly

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gets from these benchmarks for use of the criminal sanction, the more dangerous that use becomes.

Prosecution and Democracy “Democracy” is a contested concept, and there are several different ways that prosecution can be democratic. This book shows that Japan’s PRC promotes democratic prosecution in various ways. When a PRC communicates public values and views to prosecutors about what cases should be charged, it helps make prosecutors more reliable agents of the popular will and it fosters representative democracy. When a PRC rules that favoritism has been shown to some powerful person or institution, it reminds prosecutors that they should be neutral and independent and that their allegiance should be to the rule of law and legal democracy, not to particular people or organizations. When a PRC demands that prosecutors defend the dignity and equality of (say) a victim of sex crime, it promotes a form of liberal democracy that is too often honored in the breach. And most centrally, when a PRC reviews a non-charge decision, ordinary citizens play an important role in prosecutorial decision-making, which constitutes a form of participatory democracy. These contributions to democratic prosecution can be partial and inconsistent, but they are important nonetheless.62 One common concern about asking citizens to help make criminal charge decisions is that this approach to prosecution substitutes the feelings and prejudices of amateurs for the wisdom and experience of professionals. On this view, PRCs are a form of “penal populism” that denigrates the views of professional experts and educated elites by invoking the presumed but dubious authority of “the people.” But this view is too simplistic. For one thing, penal populism can take a Floods, a German Village Rethinks Its Relationship to Nature,” New York Times, August 6, 2021. 62 On different forms of democratic prosecution, see Maximo Langer and David Alan Sklansky, “Epilogue: Prosecutors and Democracy—Themes and Counterthemes,” in Langer and Sklansky, editors, Prosecutors and Democracy: A Cross-National Study (Cambridge University Press, 2017), pp. 300–338.

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variety of forms, some punitive and some not.63 For another, susceptibility to populist pressures varies across political systems, and compared to many other criminal justice systems, prosecution in Japan is not especially vulnerable to populist influences. There is also proof in the pudding. PRCs have been reviewing prosecutors’ non-charge decisions for 75 years, and Japanese criminal justice today ranks among the least punitive criminal justice systems in the world. At its best, the PRC is an institution for making prosecution more democratic: more representative of public opinion, more respectful of legal principles, more committed to liberal values, and more influenced by citizens’ participation. There are tensions and trade-offs between these different meanings of democracy, and there is not one right way to strike a balance between them, but surely other systems of prosecution and the societies in which they are embedded could benefit from thoughtful PRC-like attempts to make prosecution more democratic in the foregoing ways. Of course, a general commitment to democracy always exists in tension with other values (such as “rights” or “rationality”) which are also held sacred in many political cultures.64 In Japan, approximately twothirds of prosecutors’ non-charge decisions are suspended prosecutions (kiso yuyo). In these cases, prosecutors conclude that there is sufficient evidence to file criminal charges, but they believe it is better not to. This judgment is often sound, but there are plenty of cases in which the conclusion—and the underlying assessments of various values—can be called into question by people who do not prosecute for a living. It is impossible to state abstractly the proper balance between prosecutorial experience and expertise and public opinion and common sense. But the evidence from Japan’s PRC experiment reveals that there is wisdom in involving ordinary citizens in these crucial decision-making processes.

63

John Pratt, Penal Populism (Routledge, 2007). David Garland, “What’s Wrong with Penal Populism? Politics, the Public, and Criminological Expertise,” Asian Journal of Criminology, Vol. 16 (2021), pp. 257–277.

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Implications for Other Countries This book is about Japan but the lessons summarized above should be taken to heart in other places, for there are large and troubling pockets of impunity in many other countries and contexts. Indeed, as the power of prosecutors increases in many nations, and with an “accountability deficit” for prosecutors “worldwide,”65 the Japanese example seems widely relevant, if not as a model for reform, then as a mirror which reflects aspects of other prosecution systems that are problematic. Because of Japanese colonialism, the prosecution systems in South Korea and Taiwan resemble the system in Japan. Most notably, prosecutors in both countries have broad and unchecked discretion to charge—or not. Neither country has yet created a PRC-like institution, but scholars, legal professionals, and legislators in both are considering the possibility. They are motivated by the recognition that the power not to charge is awesome and dangerous, and by the realization that failures to charge are a source of serious injustice. In these countries, a system of citizen review may be especially promising because prosecution is more politicized there than it is in Japan.66 One result is non-charge decisions that let offenders with power and connections escape accountability for their crimes. More generally, criminal law enforcement has a direction in social space in that it can be aimed at actors of higher or lower rank. One consistent law and society finding is that “downward law” tends to be greater than “upward law.”67 That is, criminal law is more often enforced against actors of lower rank than of higher rank. In societies where there is great inequality, such as China, India, and Brazil, this tendency often expresses itself in the non-prosecution of elite offenders. A well-designed

65

Ronald F. Wright and Marc L. Miller, “The Worldwide Accountability Deficit for Prosecutors,” Washington and Lee Law Review, Vol. 67, Issue 4 (September 2010), pp. 1587–1620. 66 David T. Johnson, “The Prosecution of Corruption in South Korea: Achievements, Problems, and Prospects,” in Thomas Ginsburg, editor, Legal Reform in Korea (Routledge, 2004), pp. 47– 70; Brian L. Kennedy, “Long Hot Summer for Taiwan’s Prosecutors,” American Journal of Chinese Studies, Vol. 14, No. 2, pp. 135–152; and Wu Ching-chin, “Reforming the Role of Prosecutors in Taiwan,” Taipei Times, May 10, 2022, p. 8. 67 Donald Black, The Behavior of Law (Academic Press, 1976), p. 21.

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institution of citizen review could help tame the terrible tendency to let powerful actors get away with it. Of course, there is a need to tame the prosecutor’s power not to charge in developed democracies too. In Germany, for example, the increasing use of statistics to assess case processing “efficiency” has created incentives for prosecutors to decline to prosecute increasing numbers of cases. Criticism of German prosecutors tends to focus on their “proclivity to dismiss charges or defer prosecution and under-prosecute certain types of cases,” especially those involving powerful corporate actors.68 Similarly, the main complaint from line prosecutors in Germany is that managing prosecutors sometimes quash prosecutions for political reasons—and the main political check over improper political influence is an investigation by parliament, which is often cumbersome and ineffective. The German system does allow citizens to file formal complaints with prosecutors about unprosecuted cases, and perhaps ten percent of such complaints result in reopened cases. But if supervisors in the prosecutors’ organization decide to dismiss a case, the only remaining avenue of appeal for a victim or complainant is to a judicial body, which cannot force prosecutors to charge. Throughout this process, there is no opportunity for citizens to review a controversial non-charge decision. In a legal culture that stresses the principle of compulsory prosecution (legalitdtsprinzip), this “trust us” approach to the problem of selective enforcement seems ironic and inadequate.69 So do calls for change that would make German prosecutors “not more accountable, but rather [even] more independent.”70 Like their counterparts in Germany, prosecutors in France work in a hierarchical organization that has more internal controls over their discretion than is found in American prosecutor offices, but in France

68

Shawn Boyne, “German Prosecutors and the Rechtsstaat,” in Maximo Langer and David Alan Sklansky, editors, Prosecutors and Democracy: A Cross-National Study (Cambridge University Press, 2017), p. 139. 69 Joachim Herrmann, “The Rule of Compulsory Prosecution and the Scope of Prosecutorial Discretion in Germany,” University of Chicago Law Review, Vol. 41 (1974), pp. 468–505. 70 Maximo Langer and David Alan Sklansky, “Epilogue: Prosecutors and Democracy—Themes and Counterthemes,” in Langer and Sklansky, editors, Prosecutors and Democracy: A CrossNational Study (Cambridge University Press, 2017), p. 313.

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there appears to be more pressure placed on prosecutors by the executive branch than there is in Germany, typically to protect its patrons and supporters. Front-line prosecutors in France have broad discretion to make initial charging decisions, but when they decide not to prosecute they have to provide reasons. As in Germany, citizens in France can ask a supervising prosecutor to review a non-charge decision. They may also present a civil suit before the investigating judge in a criminal case, which removes the discretion of a prosecutor to dismiss the criminal case. Whether there is an accompanying civil suit or not, once a prosecutor in France decides to formally initiate the criminal process before an investigating judge, the court has the final word about whether the case can be dismissed. Thus, there are safeguards in the French system to protect against inappropriate non-charge decisions, but there is no way for citizens to conduct an independent review of decisions that seem problematic.71 I live and work primarily in the United States, where the injustice of mass prosecution ought to temper calls for more criminal charges. Prosecutors are, after all, the main driver of mass incarceration, which is a well-documented American tragedy.72 But criminal justice is complicated, and the problem of under-prosecution occurs here too. The vast majority of it happens not in high-profile cases that attract media attention (such as the Manhattan District Attorney’s decision to abort the prosecution of former President Donald Trump,73 or the sweetheart deal received from federal prosecutors by serial sex offender Jeffrey Epstein74 ), but in run-of-the-mill cases that usually fly under the radar, 71

On prosecution in France, see Jacqueline S. Hodgson, “The Democratic Accountability of Prosecutors in England and Wales and France: Independence, Discretion, and Managerialism,” and Mathilde Cohen, “The French Prosecutor as Judge: The Carpenter’s Mistake?,” in Maximo Langer and David Alan Sklansky, editors, Prosecutors and Democracy: A Cross-National Study (Cambridge University Press, 2017), pp. 76–108 and pp. 109–137, respectively. 72 John Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (Basic Books, 2017), pp. 127–159. 73 Ben Protess, William K. Rashbaum, and Jonah E. Bromwich, “How the Manhattan D.A.’s Investigation into Donald Trump Unraveled,” New York Times, March 5, 2022. 74 U.S. Department of Justice, Office of Professional Responsibility, Executive Summary of [350 page] Report, “Investigation Into the U.S. Attorney’s Office for the Southern District of Florida’s Resolution of Its 2006–2008 Federal Criminal Investigation of Jeffrey Epstein with Victims During the Investigation,” November 2020, pp. i–xii.

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such as sexual assault cases in which victims are re-victimized by a pernicious “credibility discount,”75 white-collar crime cases in which suspects benefit from “credibility boosts” and other benefits of the doubt,76 and domestic violence cases in which prosecution decisions are shaped by false assumptions and paternalistic biases77 —just to name three prominent patterns of under-prosecution. The author of a seminal study of “discretionary justice” in the United States believed that “Perhaps nine-tenths of the abuses of the prosecuting power involve failure to prosecute.”78 Even if the true proportion is half that, the problem of non-prosecution is huge. American courts normally have no occasion to review such cases, and grand juries are not authorized to review them either, for they are designed to check only the prosecutor’s affirmative power to charge. In this context, some form of citizen review seems sorely needed. It would not be the first time that America adopted and adapted an institution from Japan that was originally an American creation. In sum, many nations need some form of external accountability for prosecutors’ non-charge decisions. In all of them, reformers should not assume that the creation of new institutions and policies will suffice. Cultural values must be reshaped too.79 Real reform demands a change of heart and mind about a widely shared but dubious assumption, that nothing can be done to check the prosecutor’s power not to charge. Japan gives the lie to this harmful misconception.

75

Deborah Tuerkheimer, Credible: Why We Doubt Accusers and Protect Abusers (Harper Wave, 2021). 76 Jesse Eisinger, The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives (Simon & Schuster, 2017). 77 Amy Bach, Ordinary Injustice: How America Holds Court (Metropolitan Books, 2009), pp. 130–190. 78 Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (University of Illinois Press, 1969), p. 191. 79 Jonathan Rapping, Gideon’s Promise: A Public Defender Movement to Transform Criminal Justice (Beacon Press, 2020), p. 127.

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Reform in Japan I did not plan to praise the PRC. When I began this study I was skeptical about its functions and effects. But I was a skeptic with an open mind, and I have changed some of my views. To acknowledge the good work that PRCs do is not to praise them unreservedly, for there are plenty of problems too, as the preceding chapters have described. Reform of this institution is important, for it could promote more democratic prosecution and better serve Japanese values. PRCs need to be invigorated, so that fewer victims are betrayed and so there is more accountability for offenders who get away with it. At the same time, persons accused of crime need to be better represented by legal counsel and better protected from the potential harms of the PRC review process. These are difficult imperatives to balance: “reform” is easier said than done. Hence, this concluding section is not a prescription for reform or a manual for how to achieve it. It is a precis which points to problems and to ways in which PRCs need to improve their performance. The Japan Federation of Bar Associations has made many recommendations aimed at better protecting the rights and interests of the criminally accused.80 Suspects whose cases are being reviewed should be entitled to testify before the PRC. They should be guaranteed representation by a public defender during the PRC review process. And they should have the right to request that witnesses testify before a PRC. In turn, the PRC (and prosecutors) should disclose more relevant evidence to suspects and their attorneys. And prosecutors and the designated attorneys who serve as prosecutors in cases of mandatory prosecution should not be able to appeal acquittals. Japanese criminal justice is “unbalanced” in that it strongly favors law enforcement interests.81 These sensible

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Nihon Bengoshi Rengokai, “Kensatsu Shinsakai Seido no Unyo Kaizen oyobi Seido Kaikaku o Motomeru Ikensho,” September 15, 2016, pp. 1–15. 81 On imbalances of power in Japanese criminal justice, see the chapters by Setsuo Miyazawa, Daniel H. Foote, Satoru Shinomiya, and Takashi Takano in Malcolm M. Feeley and Setsuo Miyazawa, editors, The Japanese Adversary System in Context: Controversies and Comparisons (Palgrave Macmillan, 2002). And on efforts to rectify the imbalances by promoting more democratic participation in the criminal process, see Osawa Tsuneo et al., editors, Minshu

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suggestions from the JFBA would address this imbalance by strengthening the rights of suspects and defendants and by protecting against some of the risks of PRC review. There are also calls to expand the scope of mandatory prosecution. With only 10 such cases in the first 12 years after the PRC Law reform took effect in 2009, this suggestion aims to empower the PRC so that it can mandate prosecution not only when it finds for a second time that “prosecution is appropriate” (kiso soto), as the law now states, but also when it finds twice in the same case that “non-prosecution is not appropriate” (fukiso futo).82 The former disposition declares that there is sufficient evidence to conclude that prosecutors should charge, while the latter asserts that more investigation must be done before a confident charging conclusion can be reached. When police and prosecutors conduct cursory investigations, the PRC’s only recourse is to request that law enforcement try again. This is often inadequate, and it occurs most commonly in sex crime and white-collar crime cases, when law enforcement can be passive and pusillanimous. Broadening the scope of mandatory prosecution would put pressure on prosecutors and police to investigate these crimes more seriously. Of course, prosecutors will resist this reform suggestion, and expanding the scope of mandatory prosecution could undermine a central aim of the JFBA’s recommendations, by putting more people in danger of undeserved prosecution. But meaningful reform often involves tensions and trade-offs between different values. The status quo is far from perfect, and this reform should be discussed. The next reform suggestion is less controversial. Some PRCs do not convene because not enough citizens who are called to serve show up for the scheduled meetings. (Similarly, nearly 80% of lay judge candidates do not accept the call to serve as saibanin.) Under the current PRC Law, all 11 members must be present in order to vote on a case disposition. If the size of the PRC is increased to 15 members, and if a quorum of 11

teki Shiho no Tenbo: Shinomiya Satoru Sensei Koki Kinen Ronbunshu – Tochi Shutai toshite no Kokumin e no Kitai (Nihon Hyoronsha, 2022). 82 Nihon Bengoshi Rengokai, “Kensatsu Shinsakai Seido no Kaiseian – Sono Jujitsu-Kyoka o Mezashite” (1976).

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is set as the minimum requirement for making a decision, the no-show problem would be ameliorated.83 PRC membership also needs to be diversified, by age, gender, occupation, and ideology. At present, Committee members are disproportionately old, male, and conservative.84 It is unclear why young adults, women, and liberals are not better represented. Perhaps there are more no-shows in these categories, or there could be bias in the way PRC Office officials select candidates for service (or both). Whatever the causes, the current composition may cause some PRCs to tilt in a pro-prosecutor direction—toward supporting prosecutors’ non-charge decisions. Conversely, PRCs with more women on them are more likely to have concerns about unprosecuted rape cases, and more liberal representation on PRCs could lead to a more rigorous review of cases involving allegations of white-collar crime. Chapter 3 of this book described a decline over time in the frequency of ex-officio (shokken) reviews initiated by PRCs and a similar decline in the propensity of PRCs to issue “proposals and recommendations” (kengi-kankoku) to chief prosecutors. Both of these falloffs are unfortunate. Some victims of crime whose cases are never filed with a PRC ought to have their non-charge decisions reviewed, and sometimes the PRC is the only institution willing and able to ask for it. Similarly, making prosecution more democratic requires not only the review of individual cases but also the scrutiny of prosecutors’ policies and standard operating procedures. PRCs have the legal authority to give prosecutors feedback about these critical matters—and they used that authority often in the early postwar years—but now they rarely exercise it. Improving PRC performance will require raising the awareness of PRC members about these problems and possibilities. More broadly, public awareness of PRCs needs to be increased. Thirty years ago one prominent analyst argued that the key to improving 83

Hiroshi Fukurai, “Japan’s Prosecutorial Review Commissions,” University of Pennsylvania East Asian Law Review, Vol. 6 (2011); and Nihon Bengoshi Rengokai, “Kensatsu Shinsakai Seido no Kaiseian – Sono Jujitsu-Kyoka o Mezashite” (1976), pp. 16–17. 84 Hiroshi Fukurai, “The Rebirth of Japan’s Petit Quasi-Jury and Grand Jury Systems: A CrossNational Analysis of Legal Consciousness and the Lay Participatory Experience in Japan and the U.S.,” Cornell International Law Journal , Vol. 40, No. 2 (Spring 2007), pp. 315–354.

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PRC efficacy is “increasing publicity” about its purposes and effects.85 This important insight has been neglected and ignored. Most Japanese people—and most victims of crime in Japan—know little about PRCs and much less about them than they know about that other form of lay participation in criminal justice, the lay judge system. There are many reasons for this ignorance. Media seldom report about PRCs, and scholars seldom study them in a serious way. The Ministry of Justice hosts an informative website about victims’ rights and services, but it provides precious little information about PRCs.86 Some will say this is unsurprising, for prosecutors run the Ministry of Justice, and the main mission of the PRC is to check prosecutors’ power. But an explanation rooted in self-interest is not the same as a persuasive justification. Japan’s Ministry of Justice needs to do better at disseminating information about the PRC’s purposes and procedures. This information problem raises a related question: how well do frontline prosecutors explain PRC realities to the victims whose cases they decide not to charge? Similar questions can be asked about the information deficits plaguing other sources of public education about PRCs. In the index for the website of the Japan Legal Support Center (Ho Terasu), there are entries for “consultation and support services for victims of domestic violence,” “victim participation system,” and other victimservice programs, but there is no entry for the PRC.87 Why? And at the website for Japan’s judicial system there is an extensive “Question & Answer” section about PRCs, but almost all of the information is aimed at people who could be called to serve on a PRC panel, not at victims of crime and their supporters who could be well served by PRC review.88 The implicit message is, “We have a system for reviewing prosecutors’ non-charge decisions, and you might be asked to serve on it, but if you are ever victimized by crime and your offender is not charged, we do 85

Mark D. West, “Prosecution Review Commissions: Japan’s Answer to the Problem of Prosecutorial Discretion,” Columbia Law Review, Vol. 92, No. 3 (April 1992), p. 719. 86 Homusho, “Hanzai Higaisha no Katagata e,” at http://www.moj.go.jp/keiji1/keiji_keiji11. html. 87 Nihon Shiho Shien Senta Ho Terasu (Japan Legal Support Center), at https://www.houter asu.or.jp/. 88 Saibansho, “Kensatsu Shinsakai Seido Q&A,” at https://www.courts.go.jp/links/kensin/q_a/ index.html.

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not expect you to use it.” Is this the view Japan’s judiciary should be fostering? Another information problem concerns how PRCs communicate. All too often, badly. They need to provide more and better information to victims and the public, especially when they decide that a non-charge decision is appropriate (kiso soto). When a PRC in Tokyo reached this conclusion in Ito Shiori’s rape case, it provided her with a perfunctory explanation, leaving her and many observers wondering whether the accused was protected from prosecution by his political connections. If that perception is mistaken, the PRC did nothing to correct it. More broadly, Ito’s case and others like it raise questions about whether PRCs are sufficiently accountable for their decision-making. To be “accountable” is to be required to give a decent account of your reasons for action. In this sense, Japan’s PRCs are often unaccountable. In my view, the most fundamental question about PRCs is how they can be invigorated, by bringing to them more uncharged cases for review, and by making them more willing and able to challenge inappropriate non-charge decisions that have been made by professional prosecutors. This is a challenging question for several reasons. Politically, reforms that could limit prosecutors’ discretion are likely to be resisted by them and their allies in Parliament. Jurisprudentially, more aggressive charging practices could raise the risk of wrongful conviction. Culturally, increasing PRC review could conflict with the theme of “benevolence” that has characterized Japanese prosecution in the postwar period—and that is a point of pride among many in the procuracy and the judiciary.89 And practically, without better coverage of criminal justice issues by Japan’s media—and without more information about how PRCs actually work—it is hard to see how citizens will be encouraged to bring more complaints to them. These are serious issues, but if PRCs are to realize more of their promise as a check on prosecutorial power, they must be acknowledged and addressed. A related challenge is how to preserve the value of consistency in Japanese criminal justice while encouraging PRCs to challenge more 89

Daniel H. Foote, “The Benevolent Paternalism of Japanese Criminal Justice,” California Law Review, Vol. 80, No. 2 (1992), pp. 317–390; and Daniel H. Foote, “Benevolent Paternalism Revisited,” USALI East-West Studies, Vol. 1, No. 5 (June 18, 2021), pp. 1–11.

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prosecutors’ non-charge decisions. Research shows that the Japanese way of organizing prosecution regularly manages to “treat like cases alike.” This is a major achievement, and it does not happen by accident. It is a consequence of the centralized, coordinated, and hierarchical way in which prosecution in Japan is organized.90 By contrast, PRC decisionmaking is decentralized and uncoordinated, so what happens in a case review in (say) Okinawa may differ considerably from what happens in a review of similar cases in Tokyo or Osaka. Some inconsistency in decision-making between PRCs must be tolerated if the problems of under-prosecution are to be reduced nationwide, and this means some PRCs will need to take the lead while others will need to follow. To do otherwise—to insist on consistent decision-making by PRCs and to tolerate no “noise” between them91 —is to contradict the premise of local control on which the PRC system is founded. It also denies the possibility of bottom-up democratic reform. Finally, this analysis of Japan’s Prosecution Review Commission engages one of the most important but neglected questions in criminology: What is the proper role of citizens’ preferences in making decisions about criminal punishment? To the extent that this question gets engaged at all, answers tend to be framed in terms of sentencing processes and outcomes (what courts do), while the role of prosecution in punishment decision-making remains sorely neglected. Despite the growing power of prosecutors in many countries and an accountability deficit for prosecutors in many jurisdictions, we know far less about prosecution than about policing or judging. I hope this study of citizen participation in criminal prosecution in Japan encourages research about the relationship between prosecution and democracy in other countries and contexts, for this is one of the most important subjects in the study of law and society.

90

David T. Johnson, “The Organization of Prosecution and the Possibility of Order,” Law & Society Review, Vol. 32, No. 3 (1998), pp. 247–308. 91 Daniel Kahneman, Olivier Sibony, and Cass R. Sunstein, Noise: A Flaw in Human Judgment (Little, Brown and Company, 2021).

Index

A

Abe, Shinzo 13, 125, 146, 166–168 Accountability 9, 12, 14, 15, 24, 28, 29, 170, 188, 191, 192, 197 Acquittals 2, 5, 6, 35, 83, 89, 92, 93, 97, 98, 100, 103, 111, 118, 122, 127, 128, 138, 144–149, 162, 170, 192 Acton, James M. 140 Agan, Amanda 6 Akamatsu, Norio 47 Akashi Pedestrian Bridge case 92, 93, 117 Aldrich, Daniel P. 124, 125 Analogical institution of prosecution (fushinpan seikyu) 15 Anderson, Kent 34, 74 Aronson, Bruce 5 Arudou, Debito 25 Asahara, Shoko 10, 136

Aven, Terje 140 Aviram, Hadar 41

B

Babb, James D. 25, 96, 174 Bach, Amy 44, 191 Bakan, Joel 151, 160, 161, 183 Becker, Howard S. 39 Behling, Noriko 129 Bennhold, Katrin 185 Berlin, Isaiah 31 Bilott, Robert 152 Black, Donald 182, 188 Bosco, David 24 Bowdler, Michelle 177 Boylan, Peter 54 Boyne, Shawn 158, 189 Braithwaite, John 100, 159, 161, 175

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. T. Johnson, Japan’s Prosecution Review Commission, Palgrave Advances in Criminology and Criminal Justice in Asia, https://doi.org/10.1007/978-3-031-19373-6

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200

Index

Brame, Robert 117 Brazil 23, 188 Brodsky, Alexandra 109, 171, 177 Bromwich, Jonah E. 190 Brown, Darryl K. 31, 178 “Bullshit detection” 150 Burns, Catherine 171, 174, 177 Bushway, Shawn D. 117

C

Capital punishment (death penalty) 10, 82 Carlson, Matthew M. 88, 104 Chayes, Sarah 24 Chernobyl atomic accident 124, 153 Chesterton, G.K. 144 “Chickenshit Club” 157 Chief prosecutors (kenjisei) 36–38, 42, 43, 45, 57, 58, 66, 67, 179, 180, 194 China 104–106, 125, 175, 188 Chisholm, Neil 154 Christie, Nils 7 Citizen oversight 9, 52, 53 Citizen participation 30, 38, 39, 74, 144, 197 Citizen preferences 8 Clark, Anna 152 Coffee, John C. 128, 152, 158 Coleman, James William 120, 127 Comey, James 157 Compulsory investigation (kyosei sosa) 132, 133, 158 Confessions 5 Convictions 2, 4, 5, 14, 17, 22, 34, 48, 50, 52, 92, 93, 95, 96, 98, 106, 107, 118, 120, 121, 130,

141, 144, 146, 148, 149, 153, 156, 165, 168, 178, 181, 182 Corporate crime(s) 26, 157–159, 161, 182 Corporations 85, 98, 127, 146, 150, 156, 158–162, 182, 183 Corruption 24, 57, 58, 87, 104, 122 Courts 15, 17, 21, 22, 24, 28, 35, 40, 42, 44, 46, 50, 61, 66, 81, 82, 96, 98, 107, 111, 121, 126, 127, 131, 132, 138, 140–143, 145–148, 150, 153, 161, 166, 170–172, 174–176, 179, 183–185, 190, 191, 197 Cravens, Gwyneth 162 Credibility (of victims) 169, 176 Criminal justice 1, 4–8, 10, 14, 15, 17–23, 29–31, 33–36, 38–40, 50, 53, 58, 59, 62, 63, 70, 74, 77, 89, 111, 120, 127, 151–153, 156, 162–164, 170, 171, 173, 175, 176, 178–180, 183, 187, 190, 192, 195, 196 Criminal punishment (criminal sanction) 3, 6, 8, 12, 21, 23, 27, 54, 114, 117, 126, 147, 159, 178, 185, 186, 197 Criminal responsibility 81 Curtis, Gerald L. 89

D

Dahl, Robert A. 31 Davis, Angela J. 2 Davis, Kenneth Culp 7, 11, 191 Deepwater Horizon British Petroleum Case 126, 155, 156 Defamation 43, 172, 175, 176 Defense attorneys 135

Index

Deguchi, Yuichi 37 Democracy 8, 16, 19, 26–28, 30, 31, 33, 34, 36, 106, 186, 187, 197 “Democracy in a box” 75 Dershowitz, Alan 115 Designated attorneys/designated prosecutors 48, 52, 96, 98, 99, 102, 103, 107, 111, 114, 134–136, 146–149, 192 Deterrence 5, 8, 27, 30, 52, 119, 135, 158, 163, 165 Diaoyu Islands 104 Discretion 1, 3, 6, 7, 9, 11, 12, 14, 15, 17, 18, 29, 36, 41, 44, 46, 67, 164, 179, 188–190, 196 Doleac, Jennifer L. 6 Dooley, Ben 25, 126, 138 Dower, John W. 36, 75

201

Fisman, Raymond 23 Foote, Daniel H. 6, 77, 82, 126, 143, 162, 192, 196 Forcible indictment (kyosei kiso) 7, 47, 50, 120, 135, 182 France 113, 189, 190 Frankfurt, Harry G. 150 Fraser, Timothy 125 Fujimoto, Masashi 39 Fukafue, Yoshiya 167 Fukuoka scandal 45 Fukurai, Hiroshi 34, 39, 46, 47, 62, 63, 80, 81, 118, 123, 133, 173, 194 Fukushima 8, 81, 115, 118, 119, 121, 124–135, 137–141, 145–153, 156, 159, 160, 162

G E

Earthquake 8, 123, 124, 128, 129, 134, 136, 137, 139, 140, 160 Eavis, Peter 152 Egawa, Shoko 13 Eisinger, Jesse 93, 119, 157, 191 Epstein, Jeffrey 177, 178, 190 Europe 153 Ex officio investigations by PRC (shokken) 40, 43, 48, 64, 66, 67, 180, 194

F

Failed prosecutions 6, 7 Fairfax Jr., Roger A. 55 Feeley, Malcolm M. 10, 178, 192 Feldman, Eric A. 125

Garland, David 31, 122, 187 Garrett, Brandon L. 158 Geis, Gilbert 100, 159, 161 Geller, Robert J. 142 Germany 9, 29, 125, 158, 185, 189, 190 Gerth, H.H. 8 Gillers, Stephen 93, 122 Ginnivan, Leah 83 Ginsburg, Thomas 188 Glanz, James 152 Gohara, Nobuo 1, 76, 104 Goldsmith, Jack 106 Golf Instructor Quasi-Rape case 108 Goodman, Carl F. 34, 53, 55–57, 93, 104 Goodman, Marcia E. 40, 44 Goto, Akira 98 Gould, Jon B. 6

202

Index

Grand Jury 36–38, 53–56, 58, 153 Grant, Adam 83 Greenspan, Rosann 41 Gusiakov, Viacheslav K. 142

H

Hagerty, Barbara Bradley 112, 169, 174 Harriger, Katy H. 56 Harvey, Anna 6 Hasebe, Shin-ichi 51 Hattori, Takaaki 35 Hawkins, Gordon 9 Headquarters for Earthquake Research Promotion (HERP) 137–139 Heilbroner, David 54 Henderson, Bonnie 128 Herber, Erik 21, 81, 133, 137, 150 Herrmann, Joachim 189 Hessick, Carissa Byrne 7 Hibbs, Mark 140 Hideaki, Kawasaki 53 Higginbotham, Adam 162 High profile cases 92 “Himpathy” 171 Hirano, Sadao 185 Hirayama, Mari 63, 80, 81, 118, 123, 132, 133, 173 Hiromitsu, Ochiai 24, 25 Ho, Benjamin 173 Hodgson, Jacqueline S. 29, 190 Hooper, Rowan 123

I

Ibusuki, Makoto 45, 53, 182 Ideology 9, 14, 15, 18, 194

Iguchi, Ken 97, 121 Ihara, Sakura 38 Imperial Japan 58 Impunity 19, 23, 24, 26, 27, 84, 89, 103, 158, 162, 165, 176, 188 Incarceration 3, 23, 122, 190 India 188 Inertia 9, 16 Inoue, Makiko 126, 138 Inoue, Yoko 97, 121 Inquest of Prosecution (PRC) 41 Insufficient evidence (kengi fujubun) 8, 42, 69, 78, 79, 102, 113, 114, 128, 159, 168 Interrogation (torishirabe) 2, 13, 14, 87, 133 Isa, Chihiro 174 Ishii-Kuntz, Masako 27 Italy 125, 158 Ito, Kazuko 177 Itoh, Shigeki 25 Ito, Shiori 21, 110, 164–173, 177, 183, 196

J

Jackson, Robert H. 57 Japan Dentists Federation Case 91 Jedra, Christina 54 Jobin, Paul 125, 149 Johnson, Chalmers 76 Johnson, David T. 2, 5, 6, 9, 10, 12, 15, 18, 20, 22, 25, 26, 34–36, 41, 45, 48, 62, 63, 69, 70, 77, 80, 81, 83, 85, 93, 96, 98, 103, 118, 123, 132, 133, 144, 146, 164, 171, 173, 176, 182, 184, 188, 197

Index

JR West Amagasaki Rail Crash case 92, 96, 98 Judges 2, 5, 10–12, 15, 22, 35, 37, 41, 44, 46, 47, 98, 102, 111, 123, 135, 141, 143–145, 147, 184 Judo Student Severe Injury case 112 Jury Act, Japan (1923) 34 Justice system reform in Japan (shiho kaikaku) 40, 43, 91

K

Kabutoyama case 135, 185 Kahneman, Daniel 197 Kamin, Sam 9 Kanazawa, Satoshi 159 Kanemaru, Shin 63, 64, 85, 87, 88, 100 Kanoglu, Utku 129, 139, 141 Katsumata, Tsunehisa 123, 126, 134, 145 Kawai, Anri 45 Kawai, Katsuyuki 45 Kawai, Mikio 93, 132, 148 Kennedy, Brian L. 188 Kessai (hierarchical consultation and approval) 12, 13, 16, 110, 131 Kickback effects of the PRC 75 Kimeda, Hiroshi 73 King, Foster 166 Kingston, Jeff 14, 125, 128, 140 Kitajima, Noriko 175, 176 Kita, Mari 117, 175 Knopf, Alfred A. 76 Knowledge gaps 183 Komori, Akio 126 Kornhauser, Lewis 181 Koya, Matsuo 162

203

Kumagai, Fumie 27

L

LaFree, Gary 180 Lakoff, George 19 Langer, Maximo 27–30, 158, 186, 189, 190 Lasswell, Harold D. 131 Latzer, Barry 14, 165 Lavery, Sean 154 Lawson, Carol 63 Lay judge system (saibanin seido) 195 Legitimation effects of the PRC 179, 181 Leo, Richard A. 6 Liberal Democratic Party (LDP) 25, 40, 41, 63, 85, 88, 100, 101, 103, 143, 144, 146, 185 Limits of the criminal sanction 127, 128, 149 Lochbaum, David 129, 130, 151–153 Long, James D. 26 Lyman, Edwin 129, 130, 151–153

M

Managi, Shunsuke 129 Mandatory prosecution (kyosei kiso) 6–8, 18, 38–40, 45, 47, 50, 55, 58, 59, 64, 73, 76, 78, 83, 89, 91–93, 95, 96, 98–100, 102, 104–107, 111–121, 127, 131, 133–135, 145, 147, 149–151, 170, 178, 181, 182, 185, 192, 193 Matsui, Shigenori 149

204

Index

Matsumiya, Takaaki 96, 147 Matsutani, Minoru 105 McFadden, Robert D. 54 McNeill, David 111, 165, 167, 172 Media 4, 6, 28, 42, 55, 61, 63, 88, 92, 105, 111, 115, 130, 133, 136, 137, 156, 167, 168, 171, 172, 175, 179, 190, 195, 196 Menaldo, Victor 26 Meyers, Howard 34 Miguel, Edward 23 Miller, Alan S. 159 Miller, Marc L. 16, 29, 188 Mills, C. Wright 8 Ministry of Justice (Homusho) 35, 43, 195 Miscarriages of justice (wrongful convictions) 3, 5 Misconduct (by prosecutors) 9, 13, 14, 35, 43, 103, 132, 153, 162, 174 Mitchell, Richard H. 35 Mitsui, Makoto 38 Mitsuru, Shinokura 34 Miyazawa, Setsuo 10, 21, 24, 25, 40, 41, 192 Mnookin, Robert H. 181 Mori, Hono 104 Mori, Yuko 185 Moyer, Melinda Wenner 178 Mujuzi, Jamil Ddamulira 2 Murai, Toshikuni 2 Murakami, Yuri 176 Muraoka, Keiichi 2 Murphy, Paul 14 Muto, Sakae 123, 134, 145

N

Nakagawa, Kanta 51 Nakamura, Itaru 166–168, 173 Nichols, John 24 Nihon Bengoshi Rengokai (JFBA) 39, 47, 48, 62, 73, 134, 192–194 Nikko Plane Crash case 91 Nishimura, Takeshi 47, 52, 53, 67 Noggerath, Joannis 142 Nolan, Mark 34, 74 Nordberg, Jenny 158, 175

O

Oberwittler, Dietrich 173 Occupation of Japan (1945-1952) 33 Ohno, Kotaro 46 Okinawa Unlisted Stock Fraud case 99 Oppler, Alfred C. 36, 38 Osaki, Tomohiro 110, 173 Osawa, Tsuneo 192 Other countries, implications for 188 Ozawa, Ichiro 48, 58, 92, 100–104, 121, 185

P

Packer, Herbert L. 3, 7, 23, 53, 159, 185 Pascale, Celine-Marie 142 Paternoster, Ray 117 Peace Preservation Law (1925) 35 Penn, Ivan 152 Perrow, Charles 153 Pfaff, John 190

Index

Police 2, 10–12, 15–17, 21–24, 27, 35, 42, 48, 51, 52, 69, 95, 96, 109–111, 117, 120, 132, 164–169, 171, 172, 175–177, 193 Policy investigation (seisaku sosa) 104 Political prosecution (seiji teki kiso) 104 Politics 13, 28, 101, 103, 104, 124, 173 Powell, Allison Markin 164 Power 1–3, 6, 9–12, 14, 15, 17, 18, 23, 25, 30, 35, 36, 38, 39, 53–55, 57, 58, 62, 66, 75, 88, 98, 101, 103–105, 117, 119, 120, 123–126, 128–131, 134, 138, 140–142, 146–149, 151, 153, 159, 160, 162, 166, 178, 179, 184, 188, 189, 191, 192, 195–197 PRC frames 19 PRC Law of 1948 33, 36, 58, 179 PRC membership (and need for diversification) 194 PRC origins 33 PRC proposals and recommendations (kengi-kankoku) 67 PRC reform of 2009 39, 64 PRC resolution/disposition (giketsusho) 46, 49, 74, 134 Problems with prosecutors 7, 9, 12, 16–19, 58, 163 Professional negligence (gyomujo kashitsu) 25, 68, 95, 98, 107, 136, 185 Prosecution 2, 3, 5–12, 15, 16, 19, 22, 23, 26–31, 36–38, 41–43, 45, 49, 50, 52–54, 57, 62, 63,

205

66–70, 78, 83, 84, 88–90, 92, 98–100, 102–104, 106, 107, 114, 115, 117, 118, 121, 122, 127, 128, 131, 134–137, 142, 148–150, 154, 155, 158, 159, 162, 163, 168, 179, 180, 182–194, 196, 197 Prosecutor fascism (kensatsu fassho) 31, 35 Prosecutorial justice (kensatsu shiho) 1 Prosecutors (kensatsu) 1–3, 5–19, 21–23, 25–30, 35, 36, 38–46, 48–55, 58, 62, 63, 66–70, 73–81, 83–93, 95–99, 102–107, 109–112, 114–119, 121, 122, 127, 130–134, 136, 137, 143–146, 149, 155–158, 163–165, 168, 169, 171, 173, 175–181, 185–197 Protess, Ben 190 Psychopathology 160, 161 Public complaints 63 Public reactions (to TEPCO trial acquittals) 8, 50, 118, 127, 159

Q

Quasi-rape 109–111, 168, 170, 173

R

Ramseyer, J. Mark 93, 124, 129, 143, 147, 160 Rape 27, 48, 69, 109–111, 158, 163–166, 169–173, 176, 177, 194, 196 Rapping, Jonathan 191

206

Index

Rashbaum, William K. 190 Rasmusen, Eric B. 93, 143, 147 Reed, Steven R. 88, 104 Reform 6, 7, 14, 18, 21, 34–36, 38–40, 42, 45, 49, 50, 55, 58, 61, 62, 64, 66, 74–76, 78, 81, 83, 89, 91–93, 98, 109, 125, 127, 134, 144, 163, 168, 173, 178, 180–182, 188, 191–193, 196, 197 Repeta, Lawrence 124, 128, 151 Rikuzankai case 102 Road rage 116, 117, 120, 122 Roche, Sebastian 173 Role ambiguity (of prosecutors) 9, 17 Ruiko, Muto 126, 130

S

Saeki, Masahito 77 Sakai, Noriko 136 Samuels, Richard 124 Sanriku coast 129, 139 Sasakura, Kana 83 Sato, Mai 173 Sato, Michio 85–87 Sato, Tosuke 37, 38 Scalia, Antonin 57 Schlesinger, Jacob 85, 88, 100, 121 Schulz, Kathryn 128 Segi, Hiroshi 147 Senkaku Islands Ship Collision case 92, 104, 117 Sered, Danielle 20 Settlements, out of court (jidan) 170 Sewol ferry accident (South Korea) 154

Sex crime(s) 14, 21, 27, 84, 109–112, 163–165, 168–171, 173, 175–177, 185, 186, 193 Shadow effects of PRC 90, 181 Sherman, Lawrence W. 42 Shimizu, Masataka 126 Shimizu, Masato 13, 49 Shinomiya, Satoru 39, 192 Sibony, Olivier 197 Simon, Jonathan 41 Sklansky, David Alan 9, 10, 12, 16–18, 24, 27–30, 158, 186, 189, 190 Smiegocki, Victoria M. 6 Smil, Vaclav 162 Soeda, Takashi 140, 142, 145, 150, 151 Southall, Ashley 177 South Korea 28, 125, 151, 154, 158, 188 Special prosecutors (tokusobu) 33, 56–58, 85 Starr, Paul 23 Steele, Stacey 63 Stone, Megan 174, 177 Stranahan, Susan O. 129, 130, 151–153 Suami, Takao 150 Summary prosecution (summary order) (ryakushiki kiso) 87, 116 Sunstein, Cass R. 197 Suo, Masayuki 14, 18, 27 Supreme Court of Japan 34, 61 Suspension of prosecution (kiso yuyo) 2, 30, 48, 69, 78, 95, 106, 187 Sutherland, Edwin H. 119 Sweden 158, 164, 175 Swift, Jonathan 119, 159 Symonds, P. 123

Index

207

Synolakis, Costas 129, 139, 141

Twitter case 175

T

U

Tachibana, Takashi 26 Tadaki, Keiichi 43 Takano, Takashi 5, 76, 175, 192 Takeda, Masahiro 138, 140–144, 148 Takekuro, Ichiro 123, 126, 134, 145 Taleb, Nassim Nicholas 140 Tanaka, Kakuei 88, 100, 136 Tanaka, Kyota 126 Taub, Jennifer 158 TEPCO Nuclear Meltdown case 118 Tetlock, Philip E. 139 Thomas, G.A. 123 Three Mile Island atomic accident (TMI) 151–153, 156 Tipton, Elise 35 Tokushima Town Mayor Assault case 106 Tokyo Electric Power Company (TEPCO) 8, 52, 92, 118, 119, 123, 125–151, 154, 155, 159, 162, 182 Tomei Road Rage Internet Libel case 115 Tonry, Michael 9 Toyama, Kazuhiro 170 Transwar continuities 36, 58 Trust 14, 41, 43, 45, 63, 91, 108, 110, 111, 120, 133, 173 Tsunami 8, 118, 123, 124, 126, 128–130, 134–140, 147, 148, 150 Tuerkheimer, Deborah 112, 169, 170, 174, 191 Turner, Michael G. 117

Ueno, Hisako 25 Ueno, Masaru 185 Under-prosecution 15, 52, 119, 149, 157, 158, 163, 176, 190, 191, 197 United States (US) 2, 3, 6, 7, 9, 13, 14, 16, 23, 24, 28, 33, 36, 44, 56, 57, 112, 113, 116, 117, 128, 148, 151, 153, 156–158, 164–166, 176, 177, 190, 191 Upham, Frank 147

V

Vanoverbeke, Dimitri 6, 18, 20, 22, 34, 144, 184 van Wolferen, Karel 76 Victims (higaisha) 5, 6, 8, 9, 11, 17, 18, 20–23, 27, 30, 31, 40, 44, 48, 52, 77, 91, 93, 95, 98, 99, 109, 111, 112, 121, 122, 125, 127, 131, 133, 134, 137, 147, 149, 161, 163–165, 169–171, 173, 176, 177, 183, 191, 192, 194–196 Vogelstein, Rachel 174, 177 von Mehren, Arthur Taylor 35

W

Wack, Morgan 26 Wallace-Wells, David 162 Weber, Max 8 West, Mark D. 36, 38, 40, 44, 50, 53, 62, 138, 170, 195

208

Index

White-collar crime 26, 99, 119, 120, 127, 128, 133, 149, 157, 158, 163, 182, 185, 191, 193, 194 Williams, Mark C. 129 Wright, Ronald F. 16, 29, 188 Wrongful convictions (miscarriages of justice) 5, 83, 196

Yamaguchi, Mari 118, 136, 149, 166 Yamaguchi, Noriyuki 165–172, 183 Yamaguchi, Tomomi 126, 130 Yamamitsu, Eimi 126, 138 Yasuda, Yoshihiro 10–12 Yasuhara, Hiroshi 51

Z Y

Yamada, Etsuko 135, 185

Zapotosky, Matt 156 Zimring, Franklin E. 8